BY-LAWS OF
TOLL BROTHERS. INC.
As Amended and Restated March 20, 2003
ARTICLE I -- OFFICES
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Section 1-1. Registered Office and Registered Agent. The Corporation
shall maintain a registered office and registered agent within the State of
Delaware, which may be changed by the Board of Directors from time to time.
Section 1-2. Other Offices. The Corporation may also have offices at
such other places, within or without the State of Delaware, as the Board of
Directors may from time to time determine.
ARTICLE II -- STOCKHOLDERS' MEETINGS
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Section 2-1. Place of Stockholders' Meetings. Meetings of stockholders
may he held at such place, either within or without the State of Delaware, as
may be designated by the Board of Directors from time to time. If no such place
is designated by the Board of Directors, meetings of the stockholders shall be
held at the registered office of the Corporation in the State of Delaware.
Section 2-2. Annual Meeting. A meeting of the stockholders of the
Corporation shall be held in each calendar year at a date, time and place fixed
by the Board of Directors. At each annual meeting, beginning in 1990, the
successors of the class of Directors whose term expires at that meeting shall be
elected to hold office for a term to expire at the annual meeting of
stockholders held in the third year following the year of election.
Section 2-3. Special Meetings. Except as otherwise specifically
provided by law, special meetings of the stockholders may be called at any time:
(a) By the Board of Directors; or
(b) By the Chief Executive Officer of the Corporation; or
(c) By the holders of record of not less than a majority of all the
shares outstanding and entitled to vote.
Upon the written request of any person entitled to call a special
meeting, which request shall set forth the purpose for which the meeting is
desired, it shall be the duty of the Secretary to give prompt written notice of
such meeting to be held on such date and at such time as the Secretary may fix,
subject to the provisions of Section 2-4 hereof. If the Secretary shall fail to
fix such date and give notice within ten (10) days after receipt of such
request, the person or persons making request may do so.
Section 2-4. Notice of Meetings and Adjourned Meetings. Written notice
stating the place, date and time of any meeting of stockholders and, in the case
of a special meeting, the purpose or purposes for which the meeting is called
shall be given not less than ten (10) nor more than sixty (60) days before the
date of the meeting to each stockholder entitled to vote at such meeting. If
mailed, notice is given when deposited in the United States Mail, postage
prepaid, directed to the stockholder at his address as it appears on the records
of the Corporation.
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When a meeting is adjourned to another time or place, notice need not
be given of the adjourned meeting if the time and place thereof are announced at
the meeting at which the adjournment is taken. If the adjournment is for more
than thirty (30) 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 any adjourned
meeting at which a quorum is present, the Corporation may transact any business
which might have been transacted at the original meeting.
To the extent permitted by law, notice shall be deemed to have been
given to all stockholders having the same address if given in accordance with
the "householding" rules set forth in Rule 14a-3(e) under the Securities
Exchange Act of 1934, as amended (or any rules adopted in substitution or
replacement thereof).
Section 2-5. Quorum. Unless the Certificate of Incorporation provides
otherwise, the presence, in person or by proxy, at a meeting of stockholders of
the holders of a majority of the outstanding shares entitled to vote shall
constitute a quorum. The stockholders present at a duly organized meeting can
continue to do business until adjournment, notwithstanding the withdrawal of
enough stockholders to leave less than a quorum. If a meeting cannot be
organized because of the absence of a quorum, those present may, except as
otherwise provided by law, adjourn the meeting to such time and place as they
may determine.
Section 2-6. Voting List; Proxies; and Voting. The officer who has
charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days before every meeting of stockholders, a complete list of the
stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered
in the name of each stockholder. Such list shall be produced and made available
for examination at the times and at the places or in the manner required by law.
Upon the willful neglect or refusal of the Directors to produce such a
list at any meeting for the election of Directors, they shall be ineligible to
any office at such meeting.
Each stockholder entitled to vote at a meeting of stockholders or to
express consent or dissent to corporate action in writing without a meeting may
authorize another person or persons to act for him by proxy. Each proxy shall be
executed in writing, or delivered in electronic form in such manner as may be
permitted by law, and shall be filed with the Secretary of the Corporation not
later than the call to order of the meeting at which the proxy is to be
exercised or with the judge of election or the person presiding at the meeting
not later than the closing of the polls on the matter on which the proxy is to
be exercised. No proxy shall be voted or acted upon after three (3) years from
its date, unless the proxy provides for a longer period.
Except as otherwise specifically provided by law, the Certificate of
Incorporation or these by-laws, all matters coming before the meeting other than
election of Directors shall be determined by the affirmative vote of a majority
of the shares present in person or represented by proxy at the meeting and
entitled to vote on the subject matter. 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. All elections
of Directors shall be by written ballot unless otherwise provided in the
Certificate of Incorporation. Except as otherwise specifically provided by law,
the Certificate of Incorporation or these by-laws, all other votes may be taken
by voice unless a stockholder demands that it be taken by ballot, in which
latter event the vote shall be taken by written ballot.
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Section 2-7. Informal Action by Stockholders. Unless otherwise provided
by the Certificate of Incorporation, any action required to be taken at any
annual or special meeting of stockholders, or any action which may be taken at
any annual or special meeting of stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent or consents in writing,
setting forth the action so taken, bearing the date of signature of each
stockholder signing the consent, shall be signed by the holders of outstanding
stock having not less than the minimum number of votes that would be necessary
to authorize or take such action at a meeting at which all shares entitled to
vote thereon were present and voted and shall be delivered (which delivery shall
be by hand or by certified or registered mail, return receipt requested) within
any time period required by law to the Corporation's registered office in
Delaware, its principal place of business or an officer or agent of the
Corporation having custody of the book in which proceedings of meetings of
stockholders are recorded. However, if such consent is less than unanimous, such
action by written consent may be in lieu of holding an annual meeting only if
all of the directorships to which Directors could be elected at an annual
meeting held at the effective time of such action are vacant and are filled by
such action.
Prompt notice of the taking of corporate action without a meeting by
less than unanimous written consent shall be given to those stockholders who
have not consented in writing and who, if the action had been taken at a
meeting, would have been entitled to notice of the meeting if the record date
for such meeting had been the date that written consents signed by a sufficient
number of stockholders to take the action were delivered to the Corporation as
provided in the preceding paragraph.
Section 2-8. Nominations of Directors. Notwithstanding the provisions
of Section 2-9 of these by-laws (dealing with business at meetings of
stockholders), nominations for the election of Directors may be made by the
Board of Directors, by a committee appointed by the Board of Directors with
authority to do so or by any stockholder of record entitled to vote in the
election of Directors who is a stockholder at the record date of the meeting and
also on the date of the meeting at which Directors are to be elected; provided,
however, that with respect to a nomination made by a stockholder, such
stockholder must provide timely written notice to the Chairman of the Board of
the Corporation in accordance with the following requirements:
(a) To be timely, a stockholder's notice must be delivered to, or
mailed and received at, the principal executive offices of the Corporation
addressed to the attention of the Chairman of the Board (i) in the case of an
annual meeting that is called for a date that is within 30 days before or after
the anniversary date of the immediately preceding annual meeting of
stockholders, not less than 60 days nor more than 90 days prior to such
anniversary date, and (ii) in the case of an annual meeting that is called for a
date that is not within 30 days before or after the anniversary date of the
immediately preceding annual meeting, or in the case of a special meeting of
stockholders called for the purpose of electing Directors, not later than the
close of business on the fifth day following the earlier of the day on which
notice of the date of the meeting was mailed or public disclosure of the meeting
date (which shall include disclosure of the meeting date given to a national
securities exchange or the National Association of Securities Dealers) was made
to stockholders; and
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(b) Each such written notice must set forth: (i) the name and address
of the stockholder who intends to make the nomination ("Nominating
Stockholder"); (ii) the name and address of the beneficial owner, if different
than the Nominating Stockholder, of any of the shares owned of record by the
Nominating Stockholder ("Beneficial Holder"); (iii) the number of shares of each
class and series of shares of the Corporation which are owned of record and
beneficially by the Nominating Stockholder and the number which are owned
beneficially by any Beneficial Holder; (iv) a description of all arrangements
and understandings between the Nominating Stockholder and any Beneficial Holder
and any other person or persons (naming such person or persons) pursuant to
which the nomination is being made; (v) the name and address of the person or
persons to be nominated; (vi) a representation that the Nominating Stockholder
is at the time of giving of the notice, was or will be on the record date for
the meeting, and will be on the meeting date a holder of record of shares of the
Corporation entitled to vote at such meeting, and intends to appear in person or
by proxy at the meeting to nominate the person or persons specified in the
notice; (vii) such other information regarding each nominee proposed by the
Nominating Stockholder as would have been required to be included in a proxy
statement filed pursuant to the proxy rules of the Securities and Exchange
Commission had the nominee been nominated, or intended to be nominated, by the
Board of Directors; and (viii) the written consent of each nominee to serve as a
Director of the Corporation if so elected. The presiding officer of the meeting
may, in such officer's sole discretion, refuse to acknowledge the nomination of
any person which the presiding officer determines is not made in compliance with
the foregoing procedure.
Section 2-9. Business at Meetings of Stockholders.
(a) Except as otherwise provided by law, in the Certificate of
Incorporation or in these by-laws, or except as permitted by the presiding
officer of the meeting in the exercise of such officer's sole discretion in any
specific instance, the business which shall be voted upon or discussed at any
annual or special meeting of the stockholders shall (i) have been specified in
the written notice of the meeting (or any supplement thereto) given by the
Corporation, (ii) be brought before the meeting at the direction of the Board of
Directors, (iii) be brought before the meeting by the presiding officer of the
meeting unless a majority of the Directors then in office object to such
business being conducted at the meeting, (iv) in the case of a special
stockholders' meeting called by a stockholder or stockholders in accordance with
law or these by-laws, have been specified in the written notice of such meeting
(or any supplement thereto), or (v) in the case of an annual meeting of
stockholders, have been specified in a written notice given to the Corporation
by or on behalf of any stockholder who shall have been a stockholder of record
on the record date for such meeting and who shall continue to be entitled to
vote thereat (the "Stockholder Notice"), in accordance with all of the
requirements set forth below.
(b) Each Stockholder Notice must be delivered to, or mailed and
received at, the principal executive offices of the Corporation addressed to the
attention of the Secretary (i) in the case of an annual meeting that is called
for a date that is within 30 days before or after the anniversary date of the
immediately preceding annual meeting of stockholders, not less than 60 days nor
more than 90 days prior to such anniversary date, provided that a proposal
submitted by a stockholder for inclusion in the Corporation's proxy statement
for an annual meeting which is appropriate for inclusion therein and otherwise
complies with Securities Exchange Act of 1934 Rule 14a-8 (including timeliness),
shall be deemed to have also been submitted timely pursuant to these by-laws,
and (ii) in the case of an annual meeting that is called for a date that is not
within 30 days before or after the anniversary date of the immediately preceding
annual meeting, not later than the close of business on the fifth day following
the earlier of the day on which notice of the date of the meeting was mailed or
public disclosure of the meeting date (which shall include disclosure of the
meeting date given to a national securities exchange or the National Association
of Securities Dealers) was made to stockholders. Each such Stockholder Notice
must set forth (A) the name and address of the stockholder who intends to bring
the business before the annual meeting ("Proposing Stockholder"); (B) the name
and address of the beneficial owner, if different than the Proposing
Stockholder, of any of the shares owned of record by the Proposing Stockholder
("Beneficial Owner"); (C) the number of shares of each class and series of
shares of the Corporation which are owned of record and beneficially by the
Proposing Stockholder and the number which are owned beneficially by any
Beneficial Owner; (D) any interest (other than an interest solely as a
stockholder) which the Proposing Stockholder or a Beneficial Owner has in the
business being proposed by the Proposing Stockholder; (E) a description of all
arrangements and understandings between the Proposing Stockholder and any
Beneficial Owner and any other person or persons (naming such person or persons)
pursuant to which the proposal in the Stockholder Notice is being made; (F) a
description of the business which the Proposing Stockholder seeks to bring
before the annual meeting, the reason for doing so and, if a specific action is
to be proposed, the text of the resolution or resolutions which the Proposing
Stockholder proposes that the Corporation adopt; and (G) a representation that
the Proposing Stockholder is at the time of giving the Stockholder Notice, was
or will be on the record date for the meeting, and will be on the meeting date a
holder of record of shares of the Corporation entitled to vote at such meeting
and will appear in person or by proxy at the meeting to bring the business
specified in the Stockholder Notice before the meeting. The presiding officer of
the meeting may, in such officer's sole discretion, refuse to acknowledge any
business proposed by a stockholder if the presiding officer determines that the
foregoing procedure has not been complied with or if the proposing stockholder
does not appear in person or by proxy at the meeting to bring such proposed
business before the meeting.
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Section 2-10. Inspectors of Elections. In advance of any meeting of
stockholders of the Corporation, the Board of Directors shall appoint one or
more inspectors to act at the meeting and make a written report thereof. The
Board of Directors may designate one or more persons as alternate inspectors to
replace any inspector who fails to act. If an inspector or alternate is not
appointed, or, if appointed, is not able, to act at a meeting of stockholders,
the person presiding at the meeting shall appoint one or more inspectors to act
at the meeting.
ARTICLE III -- BOARD OF DIRECTORS
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Section 3-1. Number and Classification. The business and affairs of the
Corporation shall be managed by and under the direction of the Board of
Directors. The number of members of the Board of Directors shall be the number
of Directors serving at the time of adoption of this Section 3-1 or such other
number as may thereafter from time to time (i) be determined by the Board of
Directors, or (ii) be set forth in a notice of a meeting of stockholders called
by the Board of Directors for the election of Directors. The effective date of a
change in the size of the Board of Directors by reason of a notice described in
clause (ii) in the preceding sentence shall be the date the election called for
by the notice is held, unless determined otherwise by the Board of Directors.
The Directors shall be classified, with respect to duration of the term
for which they severally hold office, into three classes as nearly equal in
number as reasonably possible. Such classes shall originally consist of: one (1)
class consisting of two (2) Directors which shall be elected at the annual
meeting of stockholders held in 1989 for a term expiring at the annual meeting
of stockholders to be held in 1990; a second class constituting of two (2)
Directors which shall be elected at the annual meeting of stockholders held in
1989 for a term expiring at the annual meeting of stockholders to be held in
1991; and a third class consisting of two (2) Directors which shall be elected
at the annual meeting of stockholders held in 1989 for a term expiring at the
annual meeting of stockholders to be held in 1992. The Board of Directors shall
increase or decrease the number of Directors in one or more classes as may be
appropriate whenever it increases or decreases the number of Directors pursuant
to this Section 3-1, in order to ensure that the three classes shall be as
nearly equal in number as reasonably possible. At each annual meeting of
stockholders beginning in 1990, the successors of the class of Directors whose
term expires at that meeting shall be elected to hold office for a term expiring
at the annual meeting of stockholders held in the third year following the year
of their election.
Section 3-2. Place of Meeting. Meetings of the Board of Directors may
be held at such place either within or without the State of Delaware, as a
majority of the Directors may from time to time designate or as may be
designated in the notice calling the meeting.
Section 3-3. Regular Meetings. A regular meeting of the Board of
Directors shall be held annually, immediately following the annual meeting of
stockholders, at the place where such meeting of the stockholders is held or at
such other place, date and time as a majority of the newly elected Directors may
designate. At such meeting the Board of Directors shall elect officers of the
Corporation. In addition to such regular meeting, the Board of Directors shall
have the power to fix, by resolution, the place, date and time of other regular
meetings of the Board.
Section 3-4. Special Meetings. Special meetings of the Board of
Directors shall be held whenever ordered by the Chief Executive Officer, by a
majority of the members of the executive committee, if any, or by a majority of
the Directors in office.
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Section 3-5. Notices of Meetings of Board of Directors.
(a) Regular Meetings. No notice shall be required to be given of any
regular meeting, unless the same be held at other than the time or place for
holding such meetings as fixed in accordance with Section 3-3 of these by-laws,
in which event one (1) day's notice shall be given of the time and place of such
meeting.
(b) Special Meetings. At least one (1) day's notice shall be given of
the time, place and purpose for which any special meeting of the Board of
Directors is to be held.
Section 3-6. Quorum. A majority of the total number of Directors shall
constitute a quorum for the transaction of business, and the vote of a majority
of the Directors present at a meeting at which a quorum is present shall be the
act of the Board of Directors. If there be less than a quorum present, a
majority of those present may adjourn the meeting from time to time and place to
place and shall cause notice of each such adjourned meeting to be given to all
absent Directors.
Section 3-7. Informal Action by the Board of Directors. 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 all members of the
Board or committee, as the case may be, consent thereto in writing, and the
writing or writings are filed with the minutes of proceedings of the Board or
committee.
Section 3-8. Powers.
(a) General Powers. The Board of Directors shall have all powers
necessary or appropriate to the management of the business and affairs of the
Corporation, and, in addition to the power and authority conferred by these
by-laws, may exercise all powers of the Corporation and do all such lawful acts
and things as are not by statute, these by-laws or the Certificate of
Incorporation directed or required to be exercised or done by the stockholders.
(b) Specific Powers. Without limiting the general powers conferred by
the last preceding clause and the powers conferred by the Certificate of
Incorporation and by-laws of the Corporation, it is hereby expressly declared
that the Board of Directors shall have the following powers:
(i) To confer upon any officer or officers of the Corporation the power
to choose, remove or suspend assistant officers, agents or servants.
(ii) To appoint any person, firm or corporation to accept and hold in
trust for the Corporation any property belonging to the Corporation or in which
it is interested, and to authorize any such person, firm or corporation to
execute any documents and perform any duties that may be requisite in relation
to any such trust.
(iii) To appoint a person or persons to vote shares of another
corporation held and owned by the Corporation.
(iv) By resolution adopted by a majority of the full Board of
Directors, to designate one (1) or more of its number to constitute an executive
committee which, to the extent provided in such resolution, shall have and may
exercise the power of the Board of Directors in the management of the business
and affairs of the Corporation and may authorize the seal of the Corporation to
be affixed.
(v) By resolution passed by a majority of the whole Board of Directors,
to designate one (1) or more additional committees, each to consist of one (1)
or more Directors, to have such duties, powers and authority as the Board of
Directors shall determine. All committees of the Board of Directors, including
the executive committee, shall have the authority to adopt their own rules of
procedure. Absent the adoption of specific procedures, the procedures applicable
to the Board of Directors shall also apply to committees thereof.
(vi) To fix the place, time and purpose of meetings of stockholders.
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(vii) To purchase or otherwise acquire for the Corporation any
property, rights or privileges which the Corporation is authorized to acquire,
at such prices, on such terms and conditions and for such consideration as it
shall from time to time see fit, and, at its discretion, to pay for any
property, rights or privileges acquired by the Corporation, either wholly or
partly in money or in stocks, bonds, debentures or other securities of the
Corporation.
(viii) To create, make and issue mortgages, bonds, deeds of trust,
trust agreements and negotiable or transferable instruments and securities,
secured by mortgage or otherwise, and to do every other act and thing necessary
to effectuate the same.
(ix) To appoint and remove or suspend such subordinate officers, agents
or servants, permanently or temporarily, as it may from time to time think fit,
and to determine their duties, and fix, and from time to time change, their
salaries or emoluments, and to require security in such instances and in such
amounts as it thinks fit.
(x) To determine who shall be authorized on the Corporation's behalf to
sign bills, notes, receipts, acceptances, endorsements, checks, releases,
contracts and documents.
Section 3-9. Compensation of Directors. Compensation of Directors and
reimbursement of their expenses incurred in connection with the business of the
Corporation, if any, shall be as determined from time to time by resolution of
the Board of Directors.
Section 3-10. Removal of Directors by Stockholders. The entire Board of
Directors or any individual Director may be removed from office, only for cause,
and only by the holders of 66-2/3% of the combined voting power of the then
outstanding shares of stock entitled to vote generally in the election of
Directors, voting together as a single class. In case the entire Board of
Directors be so removed, new Directors may be elected at such time. In the event
that less than the entire Board of Directors be so removed, new Directors shall
be elected by a majority of the Directors then in office, although less than a
quorum.
Section 3-11. Resignations. Any Director may resign at any time by
submitting his written resignation to the Corporation. Such resignation shall
take effect at the time of its receipt by the Corporation unless another time be
fixed in the resignation, in which case it shall become effective at the time so
fixed. The acceptance of a resignation shall not be required to make it
effective.
Section 3-12. Vacancies. Except as provided in Section 3-10 of these
by-laws, vacancies and newly created directorships resulting from any increase
in the authorized number of Directors by the Board of Directors shall be filled
solely by a majority of the Directors then in office, although less than a
quorum, or by a sole remaining Director, and each person so elected shall be a
Director until his successor is elected and qualified or until his earlier
resignation or removal.
Section 3-13. Participation by Conference Telephone or Other Means.
Directors may participate in regular or special meetings of the Board or a
committee designated by the Board of Directors on which they serve by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other or as otherwise
permitted by law, and such participation shall constitute presence in person at
the meeting.
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ARTICLE IV -- OFFICERS
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Section 4-1. Election and Office. The Corporation's principal officers
shall consist of a Chairman of the Board, a Chief Executive Officer, a
President, a Secretary and a Treasurer, all of whom shall be elected by the
Board of Directors. The Board of Directors may elect, or may delegate authority
to the Chairman of the Board, the Chief Executive Officer or the President to
elect, such additional officers, including Vice Presidents, as may be deemed
desirable, including one or more assistant and honorary officers. Any number of
offices may be held by the same person.
Section 4-2. Term. The Chairman of the Board, the President, the
Secretary and the Treasurer shall each serve for a term of one year and until
their respective successors are chosen and qualified, unless they resign or are
removed from office by the Board of Directors during their respective tenures.
The term of office of any other officer shall be as specified by the Board of
Directors or, if elected by the Chairman of the Board, the Chief Executive
Officer or the President, by the electing officer, subject to removal by the
Board of Directors.
Section 4-3. Powers and Duties of the Chairman of the Board. Unless
otherwise determined by the Board of Directors, the Chairman of the Board shall
have the usual duties of such an officer. In the exercise of these duties and
subject to the limitations of the laws of the State of Delaware, the Certificate
of Incorporation, these by-laws, and the actions of the Board of Directors, he
shall preside at all meetings of the stockholders at which he shall be present,
and shall preside at all meetings of the Board of Directors at which he shall be
present and, except as may be precluded by law or rules applicable to the
Corporation, including rules of a stock exchange, or unless otherwise specified
by the Board of Directors, shall be a member of all committees designated by the
Board of Directors. He shall also do and perform such other duties as from time
to time may be assigned to him by the Board of Directors.
Section 4-4. Powers and Duties of the Chief Executive Officer. Unless
otherwise determined by the Board of Directors, the Chief Executive Officer
shall have general supervision over and direction of the affairs of the
Corporation. In the exercise of these duties, the Chief Executive Officer may
appoint, suspend and discharge employees and agents. In addition, he shall
perform the duties of the Chairman of the Board when the Chairman is unable to
do so and shall preside at all meetings of the Board of Directors in the absence
of the Chairman of the Board. Unless otherwise determined by the Board of
Directors, the Chief Executive Officer shall have full power and authority on
behalf of the Corporation to attend and to act and to vote at any meeting of the
stockholders of any corporation in which the Corporation may hold stock, and, at
any such meeting, shall possess and may exercise any and all of the rights and
powers incident to the ownership of such stock and which, as the owner thereof,
the Corporation might have possessed and exercised. He also shall have such
other powers and perform such other duties as shall be designated by the Board
of Directors.
Section 4-5. Powers and Duties of the President. The President shall
have such powers and perform such duties as shall be designated by the Chief
Executive Officer.
Section 4-6. Powers and Duties of Vice Presidents. Each Vice President
shall have such powers and perform such duties as shall be designated by the
Board of Directors or, if elected by the Chairman of the Board, the Chief
Executive Officer or the President, by the electing officer. Vice Presidents may
be designated as having responsibility for a specific aspect of the
Corporation's affairs.
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Section 4-7. Powers and Duties of the Secretary. Unless otherwise
determined by the Board of Directors, the Secretary shall record all proceedings
of the meetings of the Corporation, the Board of Directors and all committees,
in books to be kept for that purpose, and shall attend to the giving and serving
of all notices for the Corporation. He shall have charge of the corporate seal,
the certificate books, transfer books and stock ledgers, and such other books
and papers as the Board of Directors may direct. He shall perform all other
duties ordinarily incident to the office of Secretary and shall have such other
powers and perform such other duties as may be assigned to him by the Board of
Directors.
Section 4-8. Powers and Duties of the Treasurer. Unless otherwise
determined by the Board of Directors, the Treasurer shall have charge of all the
funds and securities of the Corporation which may come into his hands. When
necessary or proper, unless otherwise ordered by the Board of Directors, he
shall endorse for collection on behalf of the Corporation checks, notes and
other obligations, and shall deposit the same to the credit of the Corporation
in such banks or depositories as the Board of Directors may designate and shall
sign all receipts and vouchers for payments made to the Corporation. He shall
sign all checks made by the Corporation, except when the Board of Directors
shall otherwise direct. He shall enter regularly, in books of the Corporation to
be kept by him for that purpose, a full and accurate account of all moneys
received and paid by him on account of the Corporation. Whenever required by the
Board of Directors, he shall render a statement of the financial condition of
the Corporation. He shall at all reasonable times exhibit his books and accounts
to any Director of the Corporation, upon application at the office of the
Corporation during business hours. He shall have such other powers and shall
perform such other duties as may be assigned to him from time to time by the
Board of Directors. He shall give such bond, if any, for the faithful
performance of his duties as shall be required by the Board of Directors and any
such bond shall remain in the custody of the President.
Section 4-9. Delegation of Office. The Board of Directors may delegate
the powers or duties of any officer of the Corporation to any other officer or
to any Director from time to time.
Section 4-10. Vacancies. The Board of Directors shall have the power to
fill any vacancies in any office occurring for whatever reason.
Section 4-11. Resignations. Any officer may resign at anytime by
submitting his written resignation to the Corporation. Such resignation shall
take effect at the time of its receipt by the Corporation, unless another time
be fixed in the resignation, in which case it shall become effective at the time
so fixed. The acceptance of a resignation shall not be required to make it
effective.
ARTICLE V -- CAPITAL STOCK
---------------------------------
Section 5-1. Stock Certificates. Except to the extent that shares are
issued in uncertificated form upon resolution of the Board of Directors, shares
of the Corporation shall be represented by certificates signed by or in the name
of the Corporation by (a) the Chairman of the Board of Directors, or the
President or a Vice President, and (b) the Treasurer or an Assistant Treasurer,
or the Secretary or an Assistant Secretary, representing the number of shares
registered in the certificate form. If such certificate is countersigned (i) by
a transfer agent other than the Corporation or its employee, or (ii) by a
registrar other than the Corporation or its employee, the signatures of the
officers of the Corporation may be facsimiles. In case any officer, transfer
agent or registrar who has signed or whose facsimile signature has been placed
upon a certificate shall have ceased to be such officer, transfer agent or
registrar before such certificate is issued, it may be issued by the Corporation
with the same effect as if such person were such officer, transfer agent or
registrar at the date of issue.
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Section 5-2. Determination of Stockholders of Record. In order that the
Corporation may determine the stockholders entitled to notice of or to vote at
any meeting of stockholders or any adjournment thereof, the Board of Directors
may fix a record date, which record date shall not precede the date upon which
the resolution fixing the record date is adopted by the Board of Directors, and
which record date shall not be more than sixty (60) nor less than ten (10) days
before the date of such meeting. If no 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. A determination of stockholders of record entitled to notice of or to vote
at a 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.
In order that the Corporation may determine the stockholders entitled
to consent to corporate action in writing without a meeting, the Board of
Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors, and which date shall not be more than ten (10) days after the date
upon which the resolution fixing the record date is adopted by the Board of
Directors. If no record date has been fixed by the Board of Directors, the
record date for determining stockholders entitled to consent to corporate action
in writing without a meeting, when no prior action by the Board of Directors is
required, shall be the first date on which a signed written consent setting
forth the action taken or proposed to be taken is delivered to the Corporation
by delivery to its registered office in Delaware, its principal place of
business, or an officer or agent of the Corporation having custody of the book
in which proceedings of meetings of stockholders are recorded. Delivery made to
the Corporation's registered office shall be by hand or by certified or
registered mail, return receipt requested. If no record date has been fixed by
the Board of Directors and prior action by the Board of Directors is required,
the record date for determining stockholders entitled to consent to corporate
action in writing without a meeting shall be at the close of business on the day
on which the Board of Directors adopts the resolution taking such prior action.
In order that the Corporation may determine the stockholders entitled
to receive payment of any dividend or other distribution or allotment of any
rights or the stockholders 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 a record date, which record date shall
not precede the date upon which the resolution fixing the record date is
adopted, and which record date shall be not more than sixty (60) days prior to
such action. If no record date is fixed, the record date for determining
stockholders for any such purpose shall be at the close of business on the day
on which the Board of Directors adopts the resolution relating thereto.
Section 5-3. Transfer of Shares. Transfer of shares shall be made on
the books of the Corporation only upon surrender of the share certificate, duly
endorsed and otherwise in proper form for transfer, which certificate shall be
canceled at the time of the transfer. No transfer of shares shall be made on the
books of this Corporation if such transfer is in violation of a lawful
restriction noted conspicuously on the certificate.
Section 5-4. Lost, Stolen or Destroyed Share Certificates. The
Corporation may issue a new certificate or uncertificated shares in place of any
certificate theretofore issued by it, alleged to have been lost, stolen or
destroyed, and the Corporation may require the owner of the alleged lost,
stolen, or destroyed certificate, or his legal representative, to give the
Corporation a bond or other instrument acceptable to the Corporation sufficient
to indemnify it against any claim that may be made against it on account of the
alleged lost, stolen or destroyed certificate or the issuance of such new
certificate or uncertificated shares.
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ARTICLE VI -- NOTICES
---------------------------
Section 6-1. Contents of Notice. Whenever any notice of a meeting is
required to be given pursuant to these by-laws or the Certificate of
Incorporation or otherwise, the notice shall specify the place, day and time of
the meeting and, in the case of a special meeting or where otherwise required by
law, the general nature of the business to be transacted at such meeting.
Section 6-2. Method of Notice. All notices shall be given to each
person entitled thereto by any means at the time permitted by applicable law.
Without limiting the generality of the foregoing, a notice may be given to the
person either personally or by sending a copy thereof by first class or express
mail, postage prepaid, or by telegram (with messenger service specified), telex
or TWX (with answerback received) or reputable courier service, charges prepaid,
or by facsimile transmission or other recognized means of electronic
transmission, to such person's address (or to such person's telex, TWX or
facsimile number or other electronic address) appearing on the books of the
Corporation or, in the case of Directors, supplied by such Director to the
Corporation for the purpose of notice. If the notice is sent by mail, telegraph
or courier service, it shall be deemed to have been given to the person entitled
thereto when deposited in the United States mail or with a telegraph office or
courier service for delivery to that person. If the notice is sent by telex,
TWX, facsimile transmission or other electronic transmission, it shall be deemed
to have been given when dispatched. Except as otherwise provided herein, or as
otherwise directed by the Board of Directors, notices of meetings may be given
by, or at the direction of, the Secretary. If no address for a stockholder
appears on the books of the Corporation and such stockholder has not supplied
the Corporation with an address for the purpose of notice, notice deposited in
the United States Mail addressed to such stockholder care of General Delivery in
the city in which the principal office of the Corporation is located shall be
sufficient.
Section 6-3. Waiver of Notice. Whenever notice is required to be given
under any provision of law or of the Certificate of Incorporation or by-laws of
the Corporation, a written waiver, signed by the person entitled to notice,
whether before or after the time stated therein, 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. Neither the
business to be transacted at, nor the purpose of, any regular or special meeting
of the stockholders, Directors, or members of a committee of Directors need be
specified in any written waiver of notice unless so required by the Certificate
of Incorporation.
Section 6-4. Computing Time Periods.
(a) Days to be Counted. In computing the number of days for purposes of
these by_laws, all days shall be counted, including Saturdays, Sundays and any
holiday on which national banks are or may elect to be closed ("Holiday");
provided, however, that if the final day of any time period falls on a Saturday,
Sunday or Holiday, then the final day shall be deemed to be the next day which
is not a Saturday, Sunday or Holiday. In computing the number of days for the
purpose of giving notice of any meeting, the date upon which the notice is given
shall be counted but the day set for the meeting shall not be counted.
(b) One Day's Notice. In any case where only one day's notice is being
given, notice must be given at least twenty-four (24) hours in advance by
delivery in person, telephone, telex, TWX, facsimile, electronic transmission or
similar means of communication.
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ARTICLE VII -- INDEMNIFICATION OF
DIRECTORS AND OFFICERS AND OTHER
PERSONS
---------------------------------
Section 7-1. Indemnification. Subject to provisions in the Certificate
of Incorporation, the Corporation shall indemnify any Director, officer,
employee or agent of the Corporation against expenses (including legal fees),
judgments, fines and amounts paid in settlement, actually and reasonably
incurred by him, to the fullest extent now or hereafter permitted by law in
connection with and including, but not limited to those instances in which such
indemnification, although greater in scope or decree than that expressly
provided by Section 145 of the Delaware General Corporation Law, is deemed by a
majority of disinterested Directors even though less than a quorum (which may
consist of only one Director if there is only one disinterested Director) or by
independent legal counsel, after due investigation, to be in the best interest
of the Corporation, any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, brought or
threatened to be brought against him by reason of his performance as a Director,
officer, employee or agent of the Corporation, its parent or any of its
subsidiaries, or in any other capacity on behalf of Corporation, its parent or
any of its subsidiaries.
The Board of Directors by resolution adopted in each specific instance
may similarly indemnify any person other than a Director, officer, employee or
agent of the Corporation for liabilities incurred by him in connection with
services rendered by him for or at the request of the Corporation, its parent or
any of its subsidiaries.
The provisions of this Section shall be applicable to all actions,
suits or proceedings commenced after its adoption, whether such arise out of
acts or omissions which occurred prior or subsequent to such adoption and shall
continue as to a person who has ceased to be a Director, officer, employee or
agent or to render services for or at the request of the Corporation or, as the
case may be, its parent or subsidiaries and shall inure to the benefit of the
heirs, executors and administrators of such a person. The rights of
indemnification provided for herein shall not be deemed exclusive of any other
rights to which any Director, officer, employee or agent of the Corporation may
be entitled under these by-laws, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his official capacity
and as to action in another capacity while holding such office.
Section 7-2. Advances. Expenses incurred in connection with any
threatened, pending or completed action, suit or proceeding whether civil,
criminal, administrative or investigative, shall be paid by the Corporation on
behalf of a Director or officer, and may be paid by the Corporation on behalf of
any authorized representative, in advance of the final disposition of the
proceeding upon receipt of an undertaking by or on behalf of such person to
repay such amount unless it shall ultimately be determined that such person is
entitled to be indemnified by the Corporation as provided in this Article or
authorized by law. The financial ability of any such person to make such
repayment shall not be a prerequisite to the making of an advance.
Section 7-3. Independent Legal Counsel. Independent legal counsel may
be appointed by the Board of Directors, even if a quorum of disinterested
Directors is not available, or by a person designated by the Board of Directors.
If independent legal counsel, so appointed, shall determine in a written opinion
that indemnification is proper under this Article, indemnification shall be made
without further action of the Board of Directors.
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Section 7-4. Insurance. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a Director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a Director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the Corporation would have the power to indemnify him
against such liability under law.
Section 7-5. Amendment of this Article VII. The provisions of this
Article VII relating to indemnification and to the advancement of expenses shall
constitute a contract between the Corporation and each of its Directors and
officers which may be modified as to any Director or officer only with that
person's consent or as specifically provided in this Section. Notwithstanding
any other provision of these by-laws relating to their amendment generally, any
repeal or amendment of this Article VII which is adverse to any Director or
officer shall apply to such Director or officer only on a prospective basis, and
shall not limit the rights to indemnification or to the advancement of expenses
with respect to any action or failure to act occurring prior to the time of such
repeal or amendment. Notwithstanding any other provision of these by-laws, no
repeal or amendment of these by-laws shall affect any or all of this Article VII
so as to limit indemnification or the advancement of expenses in any manner
unless adopted by (a) the unanimous vote of the Directors of the Corporation
then serving, or (b) the affirmative vote of stockholders entitled to cast not
less than 66 2/3% of the votes that all stockholders are entitled to cast in the
election of Directors; provided that no such amendment shall have retroactive
effect inconsistent with the preceding sentence.
ARTICLE VIII -- SEAL
------------------------
The form of the seal of the Corporation, called the corporate seal of
the Corporation, shall be as impressed adjacent hereto.
ARTICLE IX -- FISCAL YEAR
-------------------------------
The Board of Directors shall have the power by resolution to fix the
fiscal year of the Corporation. If the Board of Directors shall fail to do so,
the Chief Executive Officer shall fix the fiscal year.
ARTICLE X -- AMENDMENTS
------------------------------
Subject to Section 7-5 of these by-laws, these by-laws may be amended
or repealed or other by-laws of the Corporation may be adopted by the
stockholders holding at least 66 2/3% of the combined voting power of all
outstanding shares entitled to vote thereon at any regular or special meeting
or, if the Corporation's Certificate of Incorporation so provides, by the Board
of Directors. The fact that such power has been so conferred upon the Board of
Directors shall not divest the stockholders of the power nor limit their power
to amend or repeal these by-laws or to adopt any other by-laws of the
Corporation. In the case of a meeting of stockholders to amend or repeal these
by-laws or to adopt any other by-laws, written notice shall be given to each
stockholder entitled to vote thereon that the purpose, or one of the purposes,
of the meeting is to consider the adoption, amendment or repeal of by-laws.
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ARTICLE XI -- INTERPRETATION OF BY-LAWS; SEPARABILITY
-----------------------------------------------------------
Section 11-1. Interpretation. All words, terms and provisions of these
by-laws shall be interpreted and defined by and in accordance with the General
Corporation Law of the State of Delaware, as amended, and as amended from time
to time hereafter. If any provision of these by-laws shall be inconsistent with
any provision of the Certificate of Incorporation, the provision of the
Certificate of Incorporation shall prevail. Where any provision of these by-laws
refers to a rule or a process as set forth in these by-laws, the reference shall
be construed to include and be satisfied by any rule or process on the same
subject set forth in the Certificate of Incorporation.
Section 11-2. Separability. The provisions of these by-laws are
independent of and separable from each other, and no provision shall be affected
or rendered invalid or unenforceable by virtue of the fact that for any reason
any other or others of them may be invalid or unenforceable in whole or in part.
ARTICLE XII -- DETERMINATIONS BY THE BOARD OF DIRECTORS
------------------------------------------------------------
Any determination involving interpretation or application of these
by-laws made in good faith by the Board of Directors shall be final, binding and
conclusive on all parties in interest.
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