Exhibit 3.2
AMENDED AND RESTATED
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BY-LAWS OF
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PRA INTERNATIONAL, INC.
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TABLE OF CONTENTS
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Article I. - General...................................................... 1
1.1. Offices........................................................ 1
1.2. Seal........................................................... 1
1.3. Fiscal Year.................................................... 1
Article II. - Stockholders................................................ 1
2.1. Place of Meetings.............................................. 1
2.2. Annual Meeting................................................. 1
2.3. Special Meeting................................................ 1
2.4. Notice of Meeting.............................................. 2
2.5. Notice of Stockholder Business and Nominations................. 2
2.6. Quorum and Adjournment......................................... 4
2.7. Right to Vote; Proxies......................................... 5
2.8. Voting......................................................... 5
2.9. Inspectors..................................................... 5
2.10. Stockholders' List............................................. 6
2.11. No Stockholder Action by Written Consent....................... 6
Article III. - Directors.................................................. 6
3.1. General Powers................................................. 6
3.2. Qualifications of Directors.................................... 6
3.3. Number of Directors; Vacancies................................. 6
3.4. Resignation.................................................... 7
3.5. Removal........................................................ 7
3.6. Place of Meetings and Books.................................... 8
3.7. Executive Committee............................................ 8
3.8. Other Committees............................................... 8
3.9. Powers Denied to Committees.................................... 8
3.10. Substitute Committee Member.................................... 9
3.11. Compensation of Directors...................................... 9
3.12. Regular Meetings............................................... 9
3.13. Special Meetings............................................... 9
3.14. Quorum......................................................... 10
3.15. Telephonic Participation in Meetings........................... 10
3.16. Action by Consent.............................................. 10
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Article IV. - Officers.................................................... 10
4.1. Selection; Statutory Officers.................................. 10
4.2. Time of Election............................................... 11
4.3. Additional Officers............................................ 11
4.4. Terms of Office................................................ 11
4.5. Compensation of Officers....................................... 11
4.6. Chairman of the Board.......................................... 11
4.7. President...................................................... 11
4.8. Vice Presidents................................................ 12
4.9. Treasurer...................................................... 12
4.10. Secretary...................................................... 12
4.11. Assistant Secretary............................................ 13
4.12. Assistant Treasurer............................................ 13
4.13. Subordinate Officers........................................... 13
4.14. Removal........................................................ 13
4.15. Vacancies...................................................... 13
Article V. - Stock........................................................ 14
5.1. Stock.......................................................... 14
5.2. Fractional Share Interests..................................... 14
5.3. Transfers of Stock............................................. 15
5.4. Record Date.................................................... 15
5.5. Transfer Agent and Registrar................................... 16
5.6. Dividends...................................................... 16
5.7. Lost, Stolen or Destroyed Certificates......................... 16
Article VI. - Miscellaneous Management Provisions......................... 16
6.1. Checks, Drafts and Notes....................................... 16
6.2. Notices........................................................ 16
6.3. Conflict of Interest........................................... 17
6.4. Voting of Securities owned by this Corporation................. 17
6.5. Inspection of Books............................................ 18
Article VII. - Indemnification............................................ 18
7.1. Right to Indemnification....................................... 18
7.2. Right of Indemnitee to Bring Suit.............................. 19
7.3. Non-Exclusivity of Rights...................................... 20
7.4. Insurance...................................................... 20
7.5. Indemnification of Employees and Agents of the Corporation..... 20
Article VIII. - Amendments................................................ 21
8.1. Amendments..................................................... 21
AMENDED AND RESTATED
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BY-LAWS OF
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PRA INTERNATIONAL, INC.
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Article I. - General.
1.1 Offices. The registered office shall be in the City of Wilmington,
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County of New Castle, State of Delaware. The Corporation may also have offices
at such other places both within and without the State of Delaware as the Board
of Directors may from time to time determine or the business of the Corporation
may require.
1.2 Seal. The seal of the Corporation shall be in the form of a circle and
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shall have inscribed thereon the name of the Corporation, the year of its
organization and the words "Corporate Seal, Delaware".
1.3 Fiscal Year. The fiscal year of the Corporation shall be the period
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from January 1 through December 31.
Article II. - Stockholders.
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2.1 Place of Meetings. All meetings of the stockholders shall be held at
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the office of the Corporation in Vienna, Virginia except such meetings as the
Board of Directors expressly determine shall be held elsewhere, in which case
meetings may be held upon notice as hereinafter provided at such other place or
places within or without the Commonwealth of Virginia as the Board of Directors
shall have determined and as shall be stated in such notice.
2.2 Annual Meeting. The annual meeting of stockholders of the Corporation
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shall be held on such date and at such place and time as may be fixed by
resolution of the Board of Directors and stated in the notice of the meeting. At
each annual meeting of stockholders, the stockholders entitled to vote shall
elect such members of the Board of Directors as are standing for election at
such meeting, and shall transact such other business as may properly be brought
before the meeting. At the annual meeting any business may be transacted,
irrespective of whether the notice calling such meeting shall have contained a
reference thereto, except where notice is required by law, the Corporation's
Restated Certificate of Incorporation, as amended and in effect from time to
time (the "Restated Certificate of Incorporation"), or these By-Laws.
2.3 Special Meeting. Subject to the rights of the holders of any series of
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preferred stock of the Corporation ("Preferred Stock") with
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respect to calling special meetings of stockholders of the Corporation, special
meetings of the stockholders for any purpose or purposes may only be called by
the Chairman of the Board of Directors, the President, or a majority of the
total number of directors which the Corporation would have if there were no
vacancies (the "Whole Board"). Only such business shall be conducted at a
special meeting as shall have been brought before the meeting pursuant to the
Corporation's notice of meeting.
2.4 Notice of Meeting. Written notice of any meeting of the stockholders
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stating the place, date and hour of the meeting shall be given to each
stockholder entitled to vote at such meeting not less than ten nor more than
sixty days before the date of the meeting. Notice need not be given to any
stockholder who submits a written waiver of notice signed by him before or after
the time stated therein. Attendance of a stockholder at a meeting of
stockholders shall constitute a waiver of notice of such meeting, except when
the stockholder attends the meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened. Neither the business to be transacted at,
nor the purpose of, any regular or special meeting of the stockholders need be
specified in any written waiver of notice. Any previously scheduled meeting of
the stockholders may be postponed, and (unless the Restated Certificate of
Incorporation otherwise provides) any special meeting of the stockholders may be
canceled, by resolution of the Board of Directors upon public notice given prior
to the date previously scheduled for such meeting of stockholders.
2.5 Notice of Stockholder Business and Nominations.
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(a) Nomination of Directors. Only persons who are
nominated in accordance with the procedures set forth in these By-Laws shall be
eligible to serve as directors. Nominations of persons for election to the Board
of Directors of the Corporation may be made at a meeting of stockholders (a) by
or at the direction of the Board of Directors or (b) by any stockholder of the
Corporation who is a stockholder of record at the time of giving of notice for
the election of directors at the meeting and who complies with the notice
procedures set forth in this Section 2.5(a). Such nominations, other than those
made by or at the direction of the Board of Directors, shall be made pursuant to
timely notice in writing to the Secretary of the Corporation. To be timely, a
stockholder's notice shall be delivered to or mailed and received at the
principal executive offices of the Corporation not less than 50 days prior to
the meeting; provided, however, that in the event that less than 55 days' notice
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or prior public disclosure of the date of the meeting is given or made to
stockholders, notice by the stockholder to be timely must be so received not
later than the close of
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business on the seventh day following the day on which such notice of the date
of the meeting or such public disclosure was made. Such stockholder's notice
shall set forth (a) as to each person whom the stockholder proposes to nominate
for election or reelection as a director, all information relating to such
person that is required to be disclosed in solicitations of proxies for election
of directors, or is otherwise required, in each case pursuant to Regulation 14A
under the Securities Exchange Act of 1934, as amended (including such person's
written consent to being named in the proxy statement as a nominee and to
serving as a director if elected), and (b) as to the stockholder giving the
notice (i) the name and address, as they appear on the Corporation's books, of
such stockholder and (ii) the class and number of shares of the Corporation
which are beneficially owned by such stockholder. At the request of the Board of
Directors, any person nominated by the Board of Directors for election as a
director shall furnish to the Secretary of the Corporation that information
required to be set forth in a stockholder's notice of nomination which pertains
to the nominee. No person shall be eligible to serve as a director of the
Corporation unless nominated in accordance with the procedures set forth in this
Section 2.5(a). The chairman of the meeting shall, if the facts warrant,
determine and declare to the meeting that a nomination was not made in
accordance with the procedures prescribed by the By-Laws, and if he should so
determine, he shall so declare to the meeting and the defective nomination shall
be disregarded. Notwithstanding the foregoing provisions of this Section 2.5(a),
a stockholder shall also comply with all applicable requirements of the
Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder with respect to the matters set forth in this Section 2.5(a).
(b) Notice of Business. At any meeting of the stockholders, only such
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business shall be conducted as shall have been brought before the meeting (a) by
or at the direction of the Board of Directors or (b) by any stockholder of the
Corporation who is a stockholder of record at the time of giving of the notice
provided for in this Section 2.5(b), who shall be entitled to vote at such
meeting and who complies with the notice procedures set forth in this Section
2.5(b). For business to be properly brought before a stockholder meeting by a
stockholder, the stockholder must have given timely notice thereof in writing to
the Secretary of the Corporation. To be timely, a stockholder's notice must be
delivered to or mailed and received at the principal executive offices of the
Corporation not less than 50 days prior to the meeting; provided, however, that
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in the event that less than 55 days' notice or prior public disclosure of the
date of the meeting is given or made to stockholders, notice by the stockholder
to
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be timely must be received no later than the close of business on the seventh
day following the day on which such notice of the date of the meeting was mailed
or such public disclosure was made. A stockholder's notice to the Secretary
shall set forth as to each matter the stockholder proposes to bring before the
meeting (a) a brief description of the business desired to be brought before the
meeting and the reasons for conducting such business at the meeting; (b) the
name and address, as they appear on the Corporation's books, of the stockholder
proposing such business, (c) the class and number of shares of the Corporation
which are beneficially owned by the stockholder, and (d) any material interest
of the stockholder in such business. Notwithstanding anything in the By-Laws to
the contrary, no business shall be conducted at a stockholder meeting except (i)
in accordance with the procedures set forth in this Section 2.5(b) or (ii) with
respect to nominations of persons for election as directors of the Corporation,
in accordance with the provisions of Section 2.5(a) hereof. The Chairman of the
meeting shall, if the facts warrant, determine and declare to the meeting that
business was not properly brought before the meeting and in accordance with the
provisions of the By-Laws, and if he should so determine, he shall so declare to
the meeting and any such business not properly brought before the meeting shall
not be transacted. Notwithstanding the foregoing provisions of this Section
2.5(b), a stockholder shall also comply with all applicable requirements of the
Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder with respect to the matters set forth in this Section.
2.6 Quorum and Adjournment. At all meetings of the stockholders, the
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holders of a majority of the stock issued and outstanding and entitled to vote
thereat, present in person or represented by proxy, shall constitute a quorum
requisite for the transaction of business except as otherwise provided by law,
by the Restated Certificate of Incorporation or by these By-Laws. The chairman
of the meeting or a majority of the shares so represented may, whether or not
there is such a quorum, adjourn the meeting from time to time without notice
other than announcement at the meeting. If the adjournment is for more than
thirty days, or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting. At such adjourned
meeting, at which the requisite amount of voting stock shall be represented, any
business may be transacted which might have been transacted if the meeting had
been held as originally called. The stockholders present at a duly called
meeting at which a quorum is present may continue to transact business until
adjournment,
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notwithstanding the withdrawal of enough stockholders to leave less than a
quorum.
2.7 Right to Vote; Proxies. Each holder of a share or shares of capital
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stock of the Corporation having the right to vote at any meeting shall be
entitled to one vote for each such share of stock held by him. Any stockholder
entitled to vote at any meeting of stockholders may vote either in person or by
proxy, but no proxy which is dated more than one year prior to the meeting at
which it is offered shall confer the right to vote thereat unless the proxy
provides that it shall be effective for a longer period. A proxy may be granted
by a writing executed by the stockholder or his authorized officer, director,
employee or agent or by transmission or authorization of transmission of a
telegram, cablegram, or other means of electronic transmission to the person who
will be the holder of the proxy or to a proxy solicitation firm, proxy support
service organization or like agent duly authorized by the person who will be the
holder of the proxy to receive such transmission, subject to the conditions set
forth in Section 212 of the Delaware General Corporation Law, as it may be
amended from time to time (the "Delaware GCL").
2.8 Voting. At all meetings of stockholders, except as otherwise expressly
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provided for by statute, the Restated Certificate of Incorporation or these By-
Laws, (i) in all matters other than the election of directors, the affirmative
vote of a majority of shares present in person or represented by proxy at the
meeting and entitled to vote on such matter shall be the act of the stockholders
and (ii) directors shall be elected by a plurality of the votes of the shares
present in person or represented by proxy at the meeting and entitled to vote on
the election of directors. Except as otherwise expressly provided by law, the
Restated Certificate of Incorporation or these By-Laws, at all meetings of
stockholders the voting shall be by ballot, each of which shall state the name
of the stockholder voting and the number of shares voted by him, and, if such
ballot be cast by a proxy, it shall also state the name of the proxy. The
chairman of the meeting shall fix and announce at the meeting the date and time
of the opening and the closing of the polls for each matter upon which the
stockholders will vote at the meeting.
2.9 Inspectors. The Board of Directors by resolutions shall appoint one or
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more inspectors, which inspector or inspectors may include individuals who serve
the Corporation in other capacities, including, without limitation, as officers,
employees, agents or representatives, to act at the meeting of stockholders and
make a written report thereof. One or more persons may be designated as
alternate inspectors to replace any inspector who fails to act. If no inspector
or alternate has been appointed
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to act or is able to act at a meeting of stockholders, the chairman of the
meeting shall appoint one or more inspectors to act at the meeting. Each
inspector, before discharging his or her duties, shall take and sign an oath
faithfully to execute the duties of inspector with strict impartiality and
according to the best of his or her ability. The inspectors shall have the
duties prescribed by law.
2.10 Stockholders' List. A complete list of the stockholders entitled to
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vote at any meeting of stockholders, arranged in alphabetical order and showing
the address of each stockholder, and the number of shares registered in the name
of each stockholder, shall be prepared by the Secretary and filed either at a
place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held, at least 10 days before such meeting, and shall
at all times during the usual hours for business, and during the whole time of
said election, be open to the examination of any stockholder for a purpose
germane to the meeting.
2.11 No Stockholder Action by Written Consent. Unless otherwise provided
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in the Restated Certificate of Incorporation, and subject to the rights, if any,
of the holders of Preferred Stock to take action by written consent, any action
required or permitted to be taken by the stockholders of the Corporation must be
effected at an annual or special meeting of stockholders of the Corporation and
may not be effected by any consent in writing by such stockholders.
Article III. - Directors.
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3.1 General Powers. In addition to the powers and authority expressly
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conferred upon them by these By-Laws, the Board of Directors may exercise all
such powers of the Corporation and do all such lawful acts and things as are not
by statute or by the Restated Certificate of Incorporation or by these By-Laws
directed or required to be exercised or done by the stockholders.
3.2 Qualifications of Directors. A director need not be a stockholder, a
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citizen of the United States, or a resident of the State of Delaware.
3.3 Number of Directors; Vacancies. The number of directors constituting
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the full Board of Directors shall be fixed from time to time exclusively
pursuant to a resolution adopted by a majority of the Whole Board of Directors.
Effective as of the closing (or the first closing) of the Corporation's
registered initial public offering of Common Stock (the "IPO
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Closing"), the Board of Directors shall consist of three classes of directors,
such classes to be as nearly equal in number of directors as possible, having
staggered three-year terms of office, the term of office of the directors of the
first such class to expire at the first annual meeting of the Corporation's
stockholders following the IPO Closing, those of the second class to expire at
the second annual meeting of the Corporation's stockholders following the IPO
Closing, and those of the third class at the third annual meeting of the
Corporation's stockholders following the IPO Closing, such that at each such
annual meeting of stockholders, nominees will stand for election for three-year
terms to succeed those directors whose terms are to expire at such meeting.
Likewise, at each other annual meeting of stockholders held from and after the
IPO Closing, those nominees elected at such meeting to succeed those directors
whose terms expire at such meeting, shall serve for a term expiring at the third
annual meeting of stockholders following their election. Members of the Board of
Directors shall hold office until the annual meeting of stockholders for the
year in which their term is scheduled to expire as set forth above in this
Section 3.3 and their respective successors are duly elected and qualified or
until their earlier death, incapacity, resignation, or removal. Except as the
Delaware GCL may otherwise require, and subject to the rights of the holders of
any series of Preferred Stock with respect to the filling of vacancies or new
directorships in the Board of Directors, any vacancies or new directorships in
the Board of Directors, including unfilled vacancies or new directorships
resulting from the removal of directors for cause or from any increase in the
number of directors, may be filled only by the vote of a majority of the
remaining directors then in office, although less than a quorum, or by the sole
remaining director.
3.4 Resignation. Any director of this Corporation may resign at any time
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by giving written notice to the Chairman of the Board, if any, the President or
the Secretary of the Corporation. Such resignation shall take effect at the time
specified therein, at the time of receipt if no time is specified therein or at
the time of acceptance if the effectiveness of such resignation is conditioned
upon its acceptance. Unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
3.5 Removal. Subject to the rights of the holders of any series of
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Preferred Stock with respect the removal of any director elected by the holders
of such series and/or any other series of Preferred Stock, any director or the
entire Board of Directors may be removed from office at any time, but only for
cause and only by the affirmative vote of the holders of a majority of the then-
outstanding shares entitled to vote thereon, voting together as a class.
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3.6 Place of Meetings and Books. The Board of Directors may hold their
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meetings and keep the books of the Corporation outside the State of Delaware, at
such places as they may from time to time determine.
3.7 Executive Committee. There may be an executive committee of one or
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more directors designated by resolution passed by a majority of the Whole Board.
The act of a majority of the members of such committee shall be the act of the
committee. Said committee may meet at stated times or on notice to all by any of
their own number, and shall have and may exercise those powers of the Board of
Directors in the management of the business affairs of the Corporation as are
provided by law and may authorize the seal of the Corporation to be affixed to
all papers which may require it. Vacancies in the membership of the committee
shall be filled by the Board of Directors at a regular meeting or at a special
meeting called for that purpose.
3.8 Other Committees. The Board of Directors may also designate one or
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more committees in addition to the executive committee, by resolution or
resolutions passed by a majority of the Whole Board; such committee or
committees shall consist of one or more directors of the Corporation, and to the
extent provided in the resolution or resolutions designating them, shall have
and may exercise specific powers of the Board of Directors in the management of
the business and affairs of the Corporation to the extent permitted by statute
and shall have power to authorize the seal of the Corporation to be affixed to
all papers which may require it. Such committee or committees shall have such
name or names as may be determined from time to time by resolution adopted by
the Board of Directors.
3.9 Powers Denied to Committees. Committees of the Board of Directors
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shall not, in any event, have any power or authority to amend the Restated
Certificate of Incorporation (except that a committee may, to the extent
authorized in the resolution or resolutions providing for the issuance of shares
adopted by the Board of Directors as provided in Section 151(a) of the Delaware
GCL, fix the designations and any of the preferences or rights of such shares
relating to dividends, redemption, dissolution, any distribution of assets of
the Corporation or the conversion into, or the exchange of such shares for,
shares of any other class or classes or any other series of the same or any
other class or classes of stock of the Corporation or fix the number of shares
of any series of stock or authorize the increase or decrease of the shares of
any series), adopt an agreement of merger or consolidation, recommend to the
stockholders the sale, lease or exchange of all or substantially all of the
Corporation's
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property and assets, recommend to the stockholders a dissolution of the
Corporation or a revocation of a dissolution or to amend the By-Laws of the
Corporation. Further, no committee of the Board of Directors shall have the
power or authority to declare a dividend, to authorize the issuance of stock or
to adopt a certificate of ownership and merger pursuant to Section 253 of the
Delaware GCL, unless the resolution or resolutions designating such committee
expressly so provides.
3.10 Substitute Committee Member. In the absence or on the
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disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of such absent or disqualified
member. Any committee shall keep regular minutes of its proceedings and report
the same to the Board of Directors as may be required by the Board of Directors.
3.11 Compensation of Directors. The Board of Directors shall have the
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power to fix the compensation of directors and members of committees of the
Board of Directors. The directors may be paid their expenses, if any, of
attendance at each meeting of the Board of Directors and may be paid a fixed sum
for attendance at each meeting of the Board of Directors and/or a stated annual
fee (some or all of which may be paid in the form of capital stock of the
Corporation) as director. No such payment shall preclude any director from
serving the Corporation in any other capacity and receiving compensation
therefor. Members of special or standing committees may be allowed like
compensation for attending committee meetings.
3.12 Regular Meetings. A regular meeting of the Board of Directors shall
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be held without other notice than this Section 3.12, immediately after, and at
the same place as, the Annual Meeting of Stockholders. The Board of Directors
may, by resolutions, provide the time and place for the holding of additional
regular meetings without other notice than such resolution. Such regular
meetings shall be held at such place within or without the State of Delaware as
shall be fixed by the Board of Directors.
3.13 Special Meetings. Special meetings of the Board of Directors may be
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called by the Chairman of the Board of Directors, if any, or the President, on
one (1) day notice to each director, or such shorter period of time before the
meeting as will nonetheless be sufficient for the convenient assembly of the
directors so notified; special meetings shall be
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called by the Secretary in like manner and on like notice, on the written
request of two or more directors.
3.14 Quorum. At all meetings of the Board of Directors, a majority of the
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total number of directors shall be necessary and sufficient to constitute a
quorum for the transaction of business, and the act of a majority of the
directors present at any meeting at which there is a quorum shall be the act of
the Board of Directors, except as may be otherwise specifically permitted or
provided by statute, or by the Restated Certificate of Incorporation, or by
these By-Laws. If at any meeting of the Board of Directors there shall be less
than a quorum present, a majority of those present may adjourn the meeting from
time to time until a quorum is obtained, and no further notice thereof need be
given other than by announcement at said meeting which shall be so adjourned.
3.15 Telephonic Participation in Meetings. Members of the Board of
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Directors or any committee designated by such board may participate in a meeting
of the Board of Directors or committee thereof by means of conference telephone
or similar communications equipment by means of which all persons participating
in the meeting can hear each other, and participation in a meeting pursuant to
this section shall constitute presence in person at such meeting.
3.16 Action by Consent. Unless otherwise restricted by the Restated
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Certificate of Incorporation or these By-Laws, any action required or permitted
to be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting, if written consent thereto is signed by all
members of the Board of Directors or of such committee, as the case may be, and
such written consent is filed with the minutes of proceedings of the Board of
Directors or committee.
Article IV. - Officers.
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4.1 Selection; Statutory Officers. The officers of the Corporation shall
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be chosen by the Board of Directors. There shall be a President, a Secretary and
a Treasurer, and there may be a Chairman of the Board of Directors, a Chief
Executive Officer, a Chief Financial Officer, a Chief Operating Officer, one or
more Executive Vice Presidents, one or more Vice Presidents, one or more
Assistant Secretaries, and one or more Assistant Treasurers, as the Board of
Directors may elect, each to perform such duties as may be assigned to him
hereunder or by the Board of Directors. Any number of offices may be held by the
same person, unless the Restated Certificate of Incorporation or these By-Laws
otherwise provide.
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4.2 Time of Election. The officers above named shall be chosen by the
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Board of Directors at its first meeting after each annual meeting of
stockholders. None of said officers need be a director.
4.3 Additional Officers. The Board of Directors may appoint such other
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officers and agents as it shall deem necessary, who shall hold their offices for
such terms and shall exercise such powers and perform such duties as shall be
determined from time to time by the Board of Directors.
4.4 Terms of Office. The officers of the Corporation shall hold office
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until their successors are chosen and qualify. Any officer elected or appointed
by the stockholders may be removed at any time by the affirmative vote of a
majority of the stockholders. Any vacancy occurring in any office of the
Corporation shall be filled by the Board of Directors.
4.5 Compensation of Officers. The Board of Directors (or a duly appointed
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committee of the Board of Directors) shall have power to fix the compensation of
all officers of the Corporation.
4.6 Chairman of the Board. The Chairman of the Board of Directors, if any,
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otherwise the President, if a director, or such other director as the Board may
choose, shall preside at all meetings of the Board of Directors and of the
stockholders of the Corporation. In the absence of the President, or in the
event of the President's inability or refusal to act, the Chairman of the Board
shall perform the duties and exercise the powers of the President until such
vacancy shall be filled in the manner prescribed by these By-Laws or by law. The
Chairman of the Board shall have such other powers and perform such other duties
as may from time to time be prescribed by the Board of Directors or these By-
Laws.
4.7 President. Unless the Board of Directors otherwise determines, the
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President shall be the Chief Executive Officer and head of the Corporation.
Unless there is a Chairman of the Board, the President shall preside at all
meetings of directors and stockholders. Under the supervision of the Board of
Directors and of the executive committee, the President shall have the general
control and management of its business and affairs, subject, however, to the
right of the Board of Directors and of the executive committee to confer any
specific power, except such as may be by statute exclusively conferred on the
President, upon any other officer or officers of the Corporation. The President
shall perform and do all acts and things incident to the position of President
and such other duties as may be assigned to him from time to time by the Board
of Directors or the executive committee.
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4.8 Executive Vice Presidents and Vice Presidents. The Executive Vice
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Presidents and Vice Presidents shall perform such of the duties of the President
on behalf of the Corporation as may be respectively assigned to them from time
to time by the Board of Directors or by the executive committee or by the
President. The Board of Directors or the executive committee may designate one
of the Executive Vice Presidents as the First Executive Vice President, and in
the absence or inability of the President to act, such Executive Vice President
shall have and possess all of the powers and discharge all of the duties of the
President, subject to the control of the Board of Directors and of the executive
committee.
4.9 Treasurer. The Treasurer shall have the care and custody of all the
---------
funds and securities of the Corporation which may come into his hands as
Treasurer, and the power and authority to endorse checks, drafts and other
instruments for the payment of money for deposit or collection when necessary or
proper and to deposit the same to the credit of the Corporation in such bank or
banks or depository as the Board of Directors or the executive committee, or the
officers or agents to whom the Board of Directors or the executive committee may
delegate such authority, may designate, and he may endorse all commercial
documents requiring endorsements for or on behalf of the Corporation. He may
sign all receipts and vouchers for the payments made to the Corporation. He
shall render an account of his transactions to the Board of Directors or to the
executive committee as often as the Board of Directors or the committee shall
require the same. He shall enter regularly in the books to be kept by him for
that purpose full and adequate account of all moneys received and paid by him on
account of the Corporation. He shall perform all acts incident to the position
of Treasurer, subject to the control of the Board of Directors and of the
executive committee. He shall when requested, pursuant to vote of the Board of
Directors or the executive committee, give a bond to the Corporation conditioned
for the faithful performance of his duties, the expense of which bond shall be
borne by the Corporation.
4.10 Secretary. The Secretary shall keep the minutes of all meetings of
---------
the Board of Directors and of the stockholders; and shall attend to the giving
and serving of all notices of the Corporation. Except as otherwise ordered by
the Board of Directors or the executive committee, the Secretary shall attest
the seal of the Corporation upon all contracts and instruments executed under
such seal and shall affix the seal of the Corporation thereto and to all
certificates of shares of capital stock of the Corporation. The Secretary shall
have charge of the stock certificate book, transfer book and stock ledger, and
such other books and papers as
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the Board of Directors or the executive committee may direct. He shall, in
general, perform all the duties of Secretary, subject to the control of the
Board of Directors and of the executive committee.
4.11 Assistant Secretary. The Assistant Secretary, or if there be more
-------------------
than one, the assistant secretaries in the order determined by the Board of
Directors (or if there be no such determination, then in the order of their
election) shall, in the absence of the Secretary or in the event of his
inability or refusal to act, perform the duties and exercise the powers of the
Secretary and shall perform such other duties and have such other powers as the
Board of Directors may from time to time prescribe.
4.12 Assistant Treasurer. The Assistant Treasurer, or if there shall be
-------------------
more than one, the Assistant Treasurers in the order determined by the Board of
Directors (or if there be no such determination, then in the order of their
election), shall, in the absence of the Treasurer or in the event of his
inability or refusal to act, perform the duties and exercise the powers of the
Treasurer and shall perform such other duties and have such other powers as the
Board of Directors may from time to time prescribe.
4.13 Subordinate Officers. The Board of Directors may select such
--------------------
subordinate officers as it may deem desirable. Each such officer shall hold
office for such period, have such authority, and perform such duties as the
Board of Directors may prescribe. The Board of Directors may, from time to time,
authorize any officer to appoint and remove subordinate officers and to
prescribe the powers and duties thereof.
4.14 Removal. Any officer elected, or agent appointed, by the Board of
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Directors may be removed by the affirmative vote of a majority of the Whole
Board whenever, in their judgment, the best interests of the Corporation would
be served thereby. Any officer or agent appointed by the President may be
removed by him whenever, in his judgment, the best interests of the Corporation
would be served thereby. No elected officer shall have any contractual rights
against the Corporation for compensation by virtue of such election beyond the
date of the election of his successor, his death, his resignation or his
removal, whichever event shall first occur, except as otherwise provided in an
employment contract or under an employee deferred compensation plan.
4.15 Vacancies. A newly created elected office and a vacancy in any
---------
elected office because of death, resignation or removal may be filled by the
Board of Directors for the unexpired portion of the term at any meeting of the
Board of Directors. Any vacancy in an office appointed by
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the President because of death, resignation, or removal may be filled by the
President.
Article V. - Stock.
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5.1 Stock. Each stockholder shall be entitled to a certificate or
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certificates of stock of the Corporation in such form as the Board of Directors
may from time to time prescribe. The certificates of stock of the Corporation
shall be numbered and shall be entered in the books of the Corporation as they
are issued. They shall certify the holder's name and number and class of shares
and shall be signed by both of (i) either the President or a Vice President, and
(ii) any one of the Treasurer or an Assistant Treasurer or the Secretary or an
Assistant Secretary, and shall be sealed with the corporate seal of the
Corporation. If such certificate is countersigned (l) by a transfer agent other
than the Corporation or its employee, or, (2) by a registrar other than the
Corporation or its employee, the signature of the officers of the Corporation
and the corporate seal may be facsimiles. In case any officer or officers who
shall have signed, or whose facsimile signature or signatures shall have been
used on, any such certificate or certificates shall cease to be such officer or
officers of the Corporation, whether because of death, resignation or otherwise,
before such certificate or certificates shall have been delivered by the
Corporation, such certificate or certificates may nevertheless be adopted by the
Corporation and be issued and delivered as though the person or persons who
signed such certificate or certificates or whose facsimile signature shall have
been used thereon had not ceased to be such officer or officers of the
Corporation.
5.2 Fractional Share Interests. The Corporation may, but shall not be
--------------------------
required to, issue fractions of a share. If the Corporation does not issue
fractions of a share, it shall (i) arrange for the disposition of fractional
interests by those entitled thereto, (ii) pay in cash the fair value of
fractions of a share as of the time when those entitled to receive such
fractions are determined, or (iii) issue scrip or warrants in registered or
bearer form which shall entitle the holder to receive a certificate for a full
share upon the surrender of such scrip or warrants aggregating a full share. A
certificate for a fractional share shall, but scrip or warrants shall not unless
otherwise provided therein, entitle the holder to exercise voting rights, to
receive dividends thereon, and to participate in any of the assets of the
Corporation in the event of liquidation. The Board of Directors may cause scrip
or warrants to be issued subject to the conditions that they shall become void
if not exchanged for certificates representing full shares before a specified
date, or subject to the conditions that the shares for which scrip or warrants
are exchangeable
-15-
may be sold by the Corporation and the proceeds thereof distributed to the
holders of scrip or warrants, or subject to any other conditions which the Board
of Directors may impose.
5.3 Transfers of Stock. Subject to any transfer restrictions then in
------------------
force, the shares of stock of the Corporation shall be transferable only upon
its books by the holders thereof in person or by their duly authorized attorneys
or legal representatives and upon such transfer the old certificates shall be
surrendered to the Corporation by the delivery thereof to the person in charge
of the stock and transfer books and ledgers or to such other person as the
directors may designate by whom they shall be cancelled and new certificates
shall thereupon be issued. The Corporation shall be entitled to treat the holder
of record of any share or shares of stock as the holder in fact thereof and
accordingly shall not be bound to recognize any equitable or other claim to or
interest in such share on the part of any other person whether or not it shall
have express or other notice thereof save as expressly provided by the laws of
Delaware.
5.4 Record Date. For the purpose of determining the stockholders entitled
-----------
to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or to express consent to corporate action in writing without a meeting,
or entitled to receive payment of any dividend or other distribution or the
allotment of any rights, or entitled to exercise any rights in respect of any
change, conversion, or exchange of stock or for the purpose of any other lawful
action, the Board of Directors may fix, in advance, a record date, which shall
not be more than sixty (60) days nor less than ten (10) days before the date of
such meeting, nor more than sixty (60) days prior to any other action. If no
such record date is fixed by the Board of Directors, the record date for
determining stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the day next preceding the day
on which notice is given, or, if notice is waived, at the close of business on
the day next preceding the day on which the meeting is held; the record date for
determining stockholders entitled to express consent to corporate action in
writing without a meeting, when no prior action by the Board of Directors is
necessary, shall be the day on which the first written consent is expressed; and
the record date for determining stockholders for any other purpose shall be at
the close of business on the day on which the Board of Directors adopts the
resolution relating thereto. A determination of stockholders of record entitled
to notice of or to vote at any meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the Board of Directors may
fix a new record date for the adjourned meeting.
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5.5 Transfer Agent and Registrar. The Board of Directors may appoint one
----------------------------
or more transfer agents or transfer clerks and one or more registrars and may
require all certificates of stock to bear the signature or signatures of any of
them.
5.6 Dividends.
---------
(a) Power to Declare. Dividends upon the capital stock of the
----------------
Corporation, subject to the provisions of the Restated Certificate of
Incorporation, if any, may be declared by the Board of Directors at any
regular or special meeting, pursuant to law. Dividends may be paid in
cash, in property, in promissory notes or in shares of the capital stock,
subject to the provisions of the Restated Certificate of Incorporation and
the laws of Delaware.
(b) Reserves. Before payment of any dividend, there may be set aside
--------
out of any funds of the Corporation available for dividends such sum or
sums as the directors from time to time, in their absolute discretion,
think proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the
Corporation, or for such other purpose as the directors shall think
conducive to the interest of the Corporation, and the directors may modify
or abolish any such reserve in the manner in which it was created.
5.7 Lost, Stolen or Destroyed Certificates. No certificates for shares of
--------------------------------------
stock of the Corporation shall be issued in place of any certificate alleged to
have been lost, stolen or destroyed, except upon production of such evidence of
the loss, theft or destruction and upon indemnification of the Corporation and
its agents to such extent and in such manner as the Board of Directors may from
time to time prescribe.
Article VI. - Miscellaneous Management Provisions.
-------------------------------------------------
6.1 Checks, Drafts and Notes. All checks, drafts or orders for the payment
------------------------
of money, and all notes and acceptances of the Corporation shall be signed by
such officer or officers, agent or agents as the Board of Directors may
designate.
6.2 Notices.
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(a) Notices to directors may, and notices to stockholders shall, be
in writing and delivered personally or mailed to the directors or
stockholders at their addresses appearing on the books of the Corporation.
Notice by mail shall be deemed to be given at
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the time when the same shall be mailed. Notice to directors may also be
given by telegram, telecopy or orally, by telephone or in person.
(b) Whenever any notice is required to be given under the provisions
of the statutes or of the Restated Certificate of Incorporation of the
Corporation or of these By-Laws, a written waiver of notice, signed by the
person or persons entitled to said notice, whether before or after the time
stated therein or the meeting or action to which such notice relates, shall
be deemed equivalent to notice. Attendance of a person at a meeting shall
constitute a waiver of notice of such meeting except when the person
attends a meeting for the express purpose of objecting, at the beginning of
the meeting, to the transaction of any business because the meeting is not
lawfully called or convened.
6.3 Conflict of Interest. No contract or transaction between the
--------------------
Corporation and one or more of its directors or officers, or between the
Corporation and any other corporation, partnership, association, or other
organization in which one or more of its directors or officers are directors or
officers, or have a financial interest, shall be void or voidable solely for
this reason, or solely because the director or officer is present at or
participates in the meeting of the Board of Directors or committee thereof which
authorized the contract or transaction, or solely because his or their votes are
counted for such purpose, if: (i) the material facts as to his relationship or
interest and as to the contract or transaction are disclosed or are known to the
Board of Directors or the committee and the Board of Directors or committee in
good faith authorizes the contract or transaction by the affirmative vote of a
majority of the disinterested directors, even though the disinterested directors
be less than a quorum; or (ii) the material facts as to his relationship or
interest and as to the contract or transaction are disclosed or are known to the
stockholders of the Corporation entitled to vote thereon, and the contract or
transaction as specifically approved in good faith by vote of such stockholders;
or (iii) the contract or transaction is fair as to the Corporation as of the
time it is authorized, approved or ratified, by the Board of Directors, a
committee or the stockholders. Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the Board of Directors or
of a committee which authorizes the contract or transaction.
6.4 Voting of Securities owned by this Corporation. Subject always to the
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specific directions of the Board of Directors, (i) any shares or other
securities issued by any other corporation and owned or controlled by this
Corporation may be voted in person at any meeting of security
-18-
holders of such other corporation by the President of this Corporation if he is
present at such meeting, or in his absence by the Treasurer of this Corporation
if he is present at such meeting, and (ii) whenever, in the judgment of the
President, it is desirable for this Corporation to execute a proxy or written
consent in respect to any shares or other securities issued by any other
corporation and owned by this Corporation, such proxy or consent shall be
executed in the name of this Corporation by the President, without the necessity
of any authorization by the Board of Directors, affixation of corporate seal or
countersignature or attestation by another officer, provided that if the
President is unable to execute such proxy or consent by reason of sickness,
absence from the United States or other similar cause, the Treasurer may execute
such proxy or consent. Any person or persons designated in the manner above
stated as the proxy or proxies of this Corporation shall have full right, power
and authority to vote the shares or other securities issued by such other
corporation and owned by this Corporation the same as such shares or other
securities might be voted by this Corporation.
6.5 Inspection of Books. The stockholders of the Corporation, by a
-------------------
majority vote at any meeting of stockholders duly called, or in case the
stockholders shall fail to act, the Board of Directors shall have power from
time to time to determine whether and to what extent and at what times and
places and under what conditions and regulations the accounts and books of the
Corporation (other than the stock ledger) or any of them, shall be open to
inspection of stockholders; and no stockholder shall have any right to inspect
any account or book or document of the Corporation except as conferred by
statute or authorized by the Board of Directors or by a resolution of the
stockholders.
Article VII. - Indemnification.
------------------------------
7.1 Right to Indemnification. Each person who was or is made a party or is
------------------------
threatened to be made a party to or is otherwise involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative (a
"Proceeding"), by reason of being or having been a director or officer of the
Corporation or serving or having served at the request of the Corporation as a
director, trustee, officer, employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with
respect to an employee benefit plan (an "Indemnitee"), whether the basis of such
proceeding is alleged action or failure to act in an official capacity as a
director, trustee, officer, employee or agent or in any other capacity while
serving as a director, trustee, officer, employee or agent, shall be indemnified
and held harmless by the Corporation to the fullest extent authorized by the
Delaware General
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Corporation Law, as the same exists or may hereafter be amended (but, in the
case of any such amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than permitted prior
thereto) (as used in this Article VII, the "Delaware Law"), against all expense,
liability and loss (including attorneys' fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid in settlement) reasonably incurred or
suffered by such Indemnitee in connection therewith and such indemnification
shall continue as to an Indemnitee who has ceased to be a director, trustee,
officer, employee or agent and shall inure to the benefit of the Indemnitee's
heirs, executors and administrators; provided, however, that, except as provided
in Section 7.2 hereof with respect to Proceedings to enforce rights to
indemnification, the Corporation shall indemnify any such Indemnitee in
connection with a Proceeding (or part thereof) initiated by such Indemnitee only
if such Proceeding (or part thereof) was authorized by the Board of Directors of
the Corporation. The right to indemnification conferred in this Article VII
shall be a contract right and shall include the right to be paid by the
Corporation the expenses (including attorneys' fees) incurred in defending any
such Proceeding in advance of its final disposition (an "Advancement of
Expenses"); provided, however, that, if the Delaware Law so requires, an
Advancement of Expenses incurred by an Indemnitee shall be made only upon
delivery to the Corporation of an undertaking (an "Undertaking"), by or on
behalf of such Indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right to appeal (a "Final Adjudication") that such Indemnitee is not
entitled to be indemnified for such expenses under this Article VII or
otherwise.
7.2 Right of Indemnitee to Bring Suit. If a claim under Section 7.1 hereof
---------------------------------
is not paid in full by the Corporation within sixty days after a written claim
has been received by the Corporation, except in the case of a claim for an
Advancement of Expenses, in which case the applicable period shall be twenty
days, the Indemnitee may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim. If successful in whole or
in part in any such suit, or in a suit brought by the Corporation to recover an
Advancement of Expenses pursuant to the terms of an Undertaking, the Indemnitee
shall be entitled to be paid also the expense of prosecuting or defending such
suit. In (i) any suit brought by the Indemnitee to enforce a right to
indemnification hereunder (but not in a suit brought by the Indemnitee to
enforce a right to an Advancement of Expenses) it shall be a defense that, and
(ii) in any suit by the Corporation to recover an Advancement of Expenses
pursuant to the terms of an Undertaking the Corporation shall be entitled to
recover such expenses upon a Final Adjudication that, the Indemnitee has
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not met the applicable standard of conduct set forth in the Delaware Law.
Neither the failure of the Corporation (including its board of directors,
independent legal counsel, or its stockholders) to have made a determination
prior to the commencement of such suit that indemnification of the Indemnitee is
proper in the circumstances because the Indemnitee has met the applicable
standard of conduct set forth in the Delaware Law, nor an actual determination
by the Corporation (including its board of directors, independent legal counsel,
or its stockholders) that the Indemnitee has not met such applicable standard of
conduct, shall create a presumption that the Indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by the
Indemnitee, be a defense to such suit. In any suit brought by the Indemnitee to
enforce a right to indemnification or to an Advancement of Expenses hereunder,
or by the Corporation to recover an Advancement of Expenses pursuant to the
terms of an Undertaking, the burden of proving that the Indemnitee is not
entitled to be indemnified, or to such Advancement of Expenses, under this
Article VII or otherwise shall be on the Corporation.
7.3 Non-Exclusivity of Rights. The rights to indemnification and to the
-------------------------
Advancement of Expenses conferred in this Article 7 shall not be exclusive of
any other right which any person may have or hereafter acquire under any
statute, the Corporation's Restated Certificate of Incorporation, By-Law,
agreement, vote of stockholders or disinterested directors or otherwise.
7.4 Insurance. The Corporation may maintain insurance, at its expense, to
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protect itself and any director, officer, employee or agent of the Corporation
or another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the Corporation would
have the power to indemnify such person against such expense, liability or loss
under this Article VII or under the Delaware Law.
7.5 Indemnification of Employees and Agents of the Corporation. The
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Corporation may, to the extent authorized from time to time by the Board of
Directors, grant rights to indemnification, and to the Advancement of Expenses,
to any employee or agent of the Corporation to the fullest extent of the
provisions of this Article VII with respect to the indemnification and
Advancement of Expenses of directors and officers of the Corporation.
Article VIII. - Amendments.
---------------------------
8.1 Amendments. Subject always to any limitations imposed by the
----------
Corporation's Restated Certificate of Incorporation, these By-Laws may be
altered, amended, or repealed, or new By-Laws may be adopted, only by (i) the
affirmative vote of the holders of at least three-quarters (75%) of the
outstanding voting stock of the Corporation (in addition to any separate class
vote that may be required pursuant to the terms of any then outstanding
preferred stock of the Corporation), or (ii) by resolution of the Board of
Directors duly adopted by not less than a majority of the directors then
constituting the full Board of Directors.