BY-LAWS
OF
TIME WARNER INC.
Incorporated under the Laws of the State of Delaware
Effective November 21, 1996
TABLE OF CONTENTS
Page
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ARTICLE I: Offices 1
Registered Office................................................................... 1
Other Offices....................................................................... 1
ARTICLE II: Meetings of Stockholders 1
Place of Meeting.................................................................... 1
Annual Meetings..................................................................... 1
Special Meetings.................................................................... 2
Notice of Meetings.................................................................. 2
Quorum.............................................................................. 2
Adjournments........................................................................ 3
Order of Business................................................................... 3
List of Stockholders................................................................ 5
Voting.............................................................................. 5
Inspectors.......................................................................... 6
Public Announcements................................................................ 6
ARTICLE III: Board of Directors 7
General Powers...................................................................... 7
Number, Qualification and Election.................................................. 7
Notification of Nominations..........................................................8
Quorum and Manner of Acting.........................................................10
Place of Meeting....................................................................10
Regular Meetings....................................................................10
Special Meetings....................................................................10
Notice of Meetings..................................................................10
Rules and Regulations...............................................................11
Participation in Meeting by Means of
Communications Equipment.....................................................11
Action without Meeting..............................................................11
Resignations........................................................................11
Removal of Directors................................................................12
Vacancies...........................................................................12
Compensation........................................................................12
Independent Directors...............................................................12
i
ARTICLE IV: Committees of the Board of Directors 13
Establishment of Committees of the Board of
Directors; Election of Members of Committees
of the Board of Directors; Functions of
Committees of the Board of Directors.........................................13
Procedure; Meetings; Quorum.........................................................14
ARTICLE V: Officers 15
Number; Term of Office..............................................................15
Removal.............................................................................16
Resignation.........................................................................16
Vacancies...........................................................................16
Chairman of the Board...............................................................16
Chief Executive Officer.............................................................16
The President.......................................................................17
Chief Operating Officer ............................................................17
Vice-Chairman of the Board..........................................................17
Chairman of the Executive Committee.................................................17
Chief Financial Officer.............................................................18
Vice-Presidents.....................................................................18
Treasurer...........................................................................18
Controller..........................................................................19
Secretary...........................................................................19
Assistant Treasurers and Assistant
Secretaries..................................................................19
ARTICLE VI: Indemnification 20
Right to Indemnification............................................................20
Insurance, Contracts and Funding....................................................21
Indemnification Not Exclusive Right.................................................21
Advancement of Expenses; Procedures; Presumptions
and Effect of Certain Proceedings; Remedies..................................21
Severability........................................................................26
Indemnification of Employees Serving
as Directors.................................................................27
Indemnification of Employees and Agents.............................................27
ARTICLE VII: Capital Stock 28
Certificates for Shares.............................................................28
Transfer of Shares..................................................................28
Registered Stockholders and Addresses
of Stockholders..............................................................29
ii
Lost, Destroyed and Mutilated Certificates..........................................29
Regulations.........................................................................30
Fixing Date for Determination of
Stockholders of Record.......................................................30
Transfer Agents and Registrars......................................................30
ARTICLE VIII: Seal 31
ARTICLE IX: Fiscal Year 31
ARTICLE X: Waiver of Notice 31
ARTICLE XI: Amendments 31
ARTICLE XII: Miscellaneous 32
Execution of Documents..............................................................32
Deposits............................................................................32
Checks..............................................................................32
Proxies in Respect of Stock or Other
Securities of Other Corporations.............................................33
Subject to Law and Certificate of
Incorporation................................................................33
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ARTICLE I
Offices
SECTION 1. Registered Office. The registered office of Time
Warner Inc. (hereinafter called the Corporation) in the State of Delaware shall
be at 32 Loockerman Square, Suite L-100, Dover, Delaware 19901 and the
registered agent shall be The Prentice-Hall Corporation System, Inc., or such
other office or agent as the Board of Directors of the Corporation (the "Board")
shall from time to time select.
SECTION 2. Other Offices. The Corporation may also have an office
or offices, and keep the books and records of the Corporation, except as may
otherwise be required by law, at such other place or places, either within or
without the State of Delaware, as the Board may from time to time determine or
the business of the Corporation may require.
ARTICLE II
Meetings of Stockholders
SECTION 1. Place of Meeting. All meetings of the stockholders of
the Corporation (the "stockholders") shall be held at the office of the
Corporation or at such other places, within or without the State of Delaware, as
may from time to time be fixed by the Board.
SECTION 2. Annual Meetings. The annual meeting of the
stockholders for the election of directors and for the transaction of such other
business as may properly come before the meeting shall be held on such date and
at such hour as shall from time to time be fixed by the Board. Any previously
scheduled annual meeting of the stockholders may be postponed by action of the
Board taken prior to the time previously scheduled for such annual meeting of
stockholders.
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SECTION 3. Special Meetings. Except as otherwise required by law
or the Restated Certificate of Incorporation of the Corporation (the
"Certificate") and subject to the rights of the holders of any series of
Preferred Stock or Series Common Stock or any class or series of stock having a
preference over the Common Stock as to dividends or upon liquidation, special
meetings of the stockholders for any purpose or purposes may be called by the
Chairman, either Co-Chief Executive Officer, or the President or a majority of
the entire Board. Only such business as is specified in the notice of any
special meeting of the stockholders shall come before such meeting.
SECTION 4. Notice of Meetings. Except as otherwise provided by
law, written notice of each meeting of the stockholders, whether annual or
special, shall be given, either by personal delivery or by mail, not less than
10 nor more than 60 days before the date of the meeting to each stockholder of
record entitled to notice of the meeting. If mailed, such notice shall be deemed
given when deposited in the United States mail, postage prepaid, directed to the
stockholder at such stockholder's address as it appears on the records of the
Corporation. Each such notice shall state the place, date and hour of the
meeting, and, in the case of a special meeting, the purpose or purposes for
which the meeting is called. Notice of any meeting of stockholders shall not be
required to be given to any stockholder who shall attend such meeting in person
or by proxy without protesting, prior to or at the commencement of the meeting,
the lack of proper notice to such stockholder, or who shall waive notice thereof
as provided in Article X of these By-laws. Notice of adjournment of a meeting of
stockholders need not be given if the time and place to which it is adjourned
are announced at such meeting, unless the adjournment is for more than 30 days
or, after adjournment, a new record date is fixed for the adjourned meeting.
SECTION 5. Quorum. Except as otherwise provided by law or by the
Certificate, the holders of a majority of the votes entitled to be cast by the
stockholders entitled to vote generally, present in person or by proxy, shall
constitute a quorum at any meeting of the stockholders; provided, however, that
in the case of any vote to be taken by classes, the holders of a majority of the
votes entitled to be cast by the stockholders of a particular
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class, present in person or by proxy, shall constitute a quorum of such class.
SECTION 6. Adjournments. The chairman of the meeting or the
holders of a majority of the votes entitled to be cast by the stockholders who
are present in person or by proxy may adjourn the meeting from time to time
whether or not a quorum is present. In the event that a quorum does not exist
with respect to any vote to be taken by a particular class, the chairman of the
meeting or the holders of a majority of the votes entitled to be cast by the
stockholders of such class who are present in person or by proxy may adjourn the
meeting with respect to the vote(s) to be taken by such class. At any such
adjourned meeting at which a quorum may be present, any business may be
transacted which might have been transacted at the meeting as originally called.
SECTION 7. Order of Business. At each meeting of the
stockholders, the Chairman or, in the absence of the Chairman, the President, or
in the absence of both the Chairman and the President, such person as shall be
selected by the Board shall act as chairman of the meeting. The order of
business at each such meeting shall be as determined by the chairman of the
meeting. The chairman of the meeting shall have the right and authority to
prescribe such rules, regulations and procedures and to do all such acts and
things as are necessary or desirable for the proper conduct of the meeting,
including, without limitation, the establishment of procedures for the
maintenance of order and safety, limitations on the time allotted to questions
or comments on the affairs of the Corporation, restrictions on entry to such
meeting after the time prescribed for the commencement thereof, and the opening
and closing of the voting polls.
At any annual meeting of stockholders, only such business shall
be conducted as shall have been brought before the annual meeting (i) by or at
the direction of the chairman of the meeting or (ii) by any stockholder who is a
holder of record at the time of the giving of the notice provided for in this
Section 7, who is entitled to vote at the meeting and who complies with the
procedures set forth in this Section 7.
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For business properly to be brought before an annual meeting by a
stockholder, the stockholder must have given timely notice thereof in proper
written form to the Secretary of the Corporation (the "Secretary"). 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 70 days nor
more than 120 days prior to the anniversary date of the immediately preceding
annual meeting; provided, however, that in the event that the date of the annual
meeting is more than 30 days earlier or more than 60 days later than such
anniversary date, notice by the stockholder to be timely must be so delivered or
received not earlier than the 120th day prior to such annual meeting and not
later than the close of business on the later of the 70th day prior to such
annual meeting or the 10th day following the day on which public announcement of
the date of such meeting is first made. To be in proper written form, a
stockholder's notice to the Secretary shall set forth in writing as to each
matter the stockholder proposes to bring before the annual meeting: (i) a brief
description of the business desired to be brought before the annual meeting and
the reasons for conducting such business at the annual meeting; (ii) the name
and address, as they appear on the Corporation's books, of the stockholder
proposing such business; (iii) the class and number of shares of the Corporation
which are beneficially owned by the stockholder; (iv) any material interest of
the stockholder in such business; and (v) if the stockholder intends to solicit
proxies in support of such stockholder's proposal, a representation to that
effect. The foregoing notice requirements shall be deemed satisfied by a
stockholder if the stockholder has notified the Corporation of his or her
intention to present a proposal at an annual meeting and such stockholder's
proposal has been included in a proxy statement that has been prepared by
management of the Corporation to solicit proxies for such annual meeting;
provided, however, that if such stockholder does not appear or send a qualified
representative to present such proposal at such annual meeting, the Corporation
need not present such proposal for a vote at such meeting, notwithstanding that
proxies in respect of such vote may have been received by the Corporation.
Notwithstanding anything in the By-laws to the contrary, no business shall be
conducted at any annual meeting except in accordance with the procedures set
forth in this Section 7. The chairman of an annual meeting may refuse to permit
any
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business to be brought before an annual meeting which fails to comply with the
foregoing procedures or, in the case of a stockholder proposal, if the
stockholder solicits proxies in support of such stockholder's proposal without
having made the representation required by clause (v) of the second preceding
sentence.
SECTION 8. List of Stockholders. It shall be the duty of the
Secretary or other officer who has charge of the stock ledger to prepare and
make, at least 10 days before each meeting of the stockholders, a complete list
of the stockholders entitled to vote thereat, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered
in such stockholder's name. Such list shall be produced and kept available at
the times and places required by law.
SECTION 9. Voting. Except as otherwise provided by law or by the
Certificate, each stockholder of record of any series of Preferred Stock or
Series Common Stock shall be entitled at each meeting of stockholders to such
number of votes, if any, for each share of such stock as may be fixed in the
Certificate or in the resolution or resolutions adopted by the Board providing
for the issuance of such stock, and each stockholder of record of Common Stock
shall be entitled at each meeting of stockholders to one vote for each share of
such stock, in each case, registered in such stockholder's name on the books of
the Corporation:
(1) on the date fixed pursuant to Section 6 of Article VII of
these By-laws as the record date for the determination of stockholders
entitled to notice of and to vote at such meeting; or
(2) if no such record date shall have been so fixed, then at the
close of business on the day next preceding the day on which notice of
such meeting 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.
Each stockholder entitled to vote at any meeting of stockholders
may authorize not in excess of three persons to act for such stockholder by
proxy. Any such proxy shall be delivered
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to the secretary of such meeting at or prior to the time designated for holding
such meeting, but in any event not later than the time designated in the order
of business for so delivering such proxies. No such proxy shall be voted or
acted upon after three years from its date, unless the proxy provides for a
longer period.
At each meeting of the stockholders, all corporate actions to be
taken by vote of the stockholders (except as otherwise required by law and
except as otherwise provided in the Certificate or these By-laws) shall be
authorized by a majority of the votes cast by the stockholders entitled to vote
thereon who are present in person or represented by proxy, and where a separate
vote by class is required, a majority of the votes cast by the stockholders of
such class who are present in person or represented by proxy shall be the act of
such class.
Unless required by law or determined by the chairman of the
meeting to be advisable, the vote on any matter, including the election of
directors, need not be by written ballot. In the case of a vote by written
ballot, each ballot shall be signed by the stockholder voting, or by such
stockholder's proxy, and shall state the number of shares voted.
SECTION 10. Inspectors. The chairman of the meeting shall appoint
two or more inspectors to act at any meeting of stockholders. Such inspectors
shall perform such duties as shall be required by law or specified by the
chairman of the meeting. Inspectors need not be stockholders. No director or
nominee for the office of director shall be appointed such inspector.
SECTION 11. Public Announcements. For purpose of Section 7 of
this Article II and Section 3 of Article III, "public announcement" shall mean
disclosure (i) in a press release reported by the Dow Jones News Service,
Reuters Information Service or any similar or successor news wire service or
(ii) in a writing distributed generally to stockholders and in a document
publicly filed by the Corporation with the Securities and Exchange Commission
pursuant to Sections 13, 14 or 15(d) of the Securities Exchange Act of 1934 or
any successor provisions thereto.
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ARTICLE III
Board of Directors
SECTION 1. General Powers. The business and affairs of the
Corporation shall be managed by or under the direction of the Board, which may
exercise all such powers of the Corporation and do all such lawful acts and
things as are not by law or by the Certificate directed or required to be
exercised or done by the stockholders.
SECTION 2. Number, Qualification and Election. Except as
otherwise fixed by or pursuant to the provisions of Article IV of the
Certificate relating to the rights of the holders of any series of Preferred
Stock or Series Common Stock or any class or series of stock having preference
over the Common Stock as to dividends or upon liquidation, the number of
directors of the Corporation shall be determined from time to time by the Board
by the affirmative vote of directors constituting at least a majority of the
entire Board; provided that the number thereof may not be less than three.
The directors, other than those who may be elected by the holders
of shares of any series of Preferred Stock or Series Common Stock or any class
or series of stock having a preference over the Common Stock of the Corporation
as to dividends or upon liquidation pursuant to the terms of Article IV of the
Certificate or any resolution or resolutions providing for the issuance of such
stock adopted by the Board, shall be classified, with respect to the time for
which they severally hold office, into three classes as nearly equal in number
as possible, with each class to hold office until its successors are elected and
qualified. If the number of directors is changed by the Board, any newly created
directorships or any decrease in directorships shall be so apportioned among the
classes as to make all classes as nearly equal as possible; provided, however,
that no decrease in the number of directors shall shorten the term of any
incumbent director. Subject to the rights of the holders of any series of
Preferred Stock or Series Common Stock or any class or series of stock having a
preference over the Common Stock of the Corporation as to dividends or upon
liquidation, at each such annual meeting of the stockholders, the
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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.
Each director shall be at least 21 years of age. Directors need
not be stockholders of the Corporation.
In any election of directors, the persons receiving a plurality
of the votes cast, up to the number of directors to be elected in such election,
shall be deemed elected.
SECTION 3. Notification of Nominations. Subject to the rights of
the holders of any series of Preferred Stock or Series Common Stock or any class
or series of stock having a preference over the Common Stock as to dividends or
upon liquidation, nominations for the election of directors may be made by the
Board or by any stockholder who is a stockholder of record at the time of giving
of the notice of nomination provided for in this Section 3 and who is entitled
to vote for the election of directors. Any stockholder of record entitled to
vote for the election of directors at a meeting may nominate persons for
election as directors only if timely written notice of such stockholder's intent
to make such nomination is given, either by personal delivery or by United
States mail, postage prepaid, to the Secretary. To be timely, a stockholder's
notice must be delivered to or mailed and received at the principal executive
offices of the Corporation (i) with respect to an election to be held at an
annual meeting of stockholders, not less than 70 nor more than 120 days prior to
the anniversary date of the immediately preceding annual meeting; provided,
however, that in the event that the date of the annual meeting is more than 30
days earlier or more than 60 days later than such anniversary date, notice by
the stockholder to be timely must be so delivered or received not earlier than
the 120th day prior to such annual meeting and not later than the close of
business on the later of the 70th day prior to such annual meeting or the 10th
day following the day on which public announcement of the date of such meeting
is first made and (ii) with respect to an election to be held at a special
meeting of stockholders for the election of directors, not earlier than the 90th
day prior to such special meeting and not later than the close of business on
the
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later of the 60th day prior to such special meeting or the 10th day following
the day on which public announcement is first made of the date of the special
meeting and of the nominees to be elected at such meeting. Each such notice
shall set forth: (a) the name and address of the stockholder who intends to make
the nomination and of the person or persons to be nominated; (b) a
representation that the stockholder is a holder of record of stock 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; (c) a description of all arrangements or understandings between the
stockholder and each nominee and any other person or persons (naming such person
or persons) pursuant to which the nomination or nominations are to be made by
the stockholder; (d) such other information regarding each nominee proposed by
such 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
each nominee been nominated, or intended to be nominated, by the Board; (e) the
consent of each nominee to serve as a director of the Corporation if so elected
and (f) if the stockholder intends to solicit proxies in support of such
stockholder's nominee(s), a representation to that effect. The chairman of the
meeting may refuse to acknowledge the nomination of any person not made in
compliance with the foregoing procedure or if the stockholder solicits proxies
in favor of such stockholder's nominee(s) without having made the representation
required by the immediately preceding sentence. Only such persons who are
nominated in accordance with the procedures set forth in this Section 3 shall be
eligible to serve as directors of the Corporation.
Notwithstanding anything in the immediately preceding paragraph
of this Section 3 to the contrary, in the event that the number of directors to
be elected to the Board of Directors of the Corporation at an annual meeting of
stockholders is increased and there is no public announcement naming all of the
nominees for directors or specifying the size of the increased Board of
Directors made by the Corporation at least 70 days prior to the first
anniversary of the preceding year's annual meeting, a shareholder's notice
required by this Section 3 shall also be considered timely, but only with
respect to nominees for any new positions created by such increase, if it shall
be delivered to or
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mailed to and received by the secretary at the principal executive offices of
the Corporation not later than the close of business on the 10th day following
the day on which such public announcement is first made by the Corporation.
SECTION 4. Quorum and Manner of Acting. Except as otherwise
provided by law, the Certificate or these By-laws, a majority of the entire
Board shall constitute a quorum for the transaction of business at any meeting
of the Board, and, except as so provided, the vote of a majority of the
directors present at any meeting at which a quorum is present shall be the act
of the Board. The chairman of the meeting or a majority of the directors present
may adjourn the meeting to another time and place whether or not a quorum is
present. At any adjourned meeting at which a quorum is present, any business may
be transacted which might have been transacted at the meeting as originally
called.
SECTION 5. Place of Meeting. The Board may hold its meetings at
such place or places within or without the State of Delaware as the Board may
from time to time determine or as shall be specified or fixed in the respective
notices or waivers of notice thereof.
SECTION 6. Regular Meetings. Regular meetings of the Board shall
be held at such times and places as the Board shall from time to time by
resolution determine. If any day fixed for a regular meeting shall be a legal
holiday under the laws of the place where the meeting is to be held, the meeting
which would otherwise be held on that day shall be held at the same hour on the
next succeeding business day.
SECTION 7. Special Meetings. Special meetings of the Board shall
be held whenever called by the Chairman, either Co- Chief Executive Officer, or
the President or by a majority of the directors.
SECTION 8. Notice of Meetings. Notice of regular meetings of the
Board or of any adjourned meeting thereof need not be given. Notice of each
special meeting of the Board shall be given by overnight delivery service or
mailed to each director, in either case addressed to such director at such
director's residence
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or usual place of business, at least two days before the day on which the
meeting is to be held or shall be sent to such director at such place by
telegraph or telecopy or be given personally or by telephone, not later than the
day before the meeting is to be held, but notice need not be given to any
director who shall, either before or after the meeting, submit a signed waiver
of such notice or who shall attend such meeting without protesting, prior to or
at its commencement, the lack of notice to such director. Every such notice
shall state the time and place but need not state the purpose of the meeting.
SECTION 9. Rules and Regulations. The Board may adopt such rules
and regulations not inconsistent with the provisions of law, the Certificate or
these By-laws for the conduct of its meetings and management of the affairs of
the Corporation as the Board may deem proper.
SECTION 10. Participation in Meeting by Means of Communications
Equipment. Any one or more members of the Board or any committee thereof may
participate in any meeting of the Board or of any such committee by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and such participation
in a meeting shall constitute presence in person at such meeting.
SECTION 11. Action without Meeting. Any action required or
permitted to be taken at any meeting of the Board or any committee thereof may
be taken without a meeting if all of the members of the Board or of any such
committee consent thereto in writing and the writing or writings are filed with
the minutes or proceedings of the Board or of such committee.
SECTION 12. Resignations. Any director of the Corporation may at
any time resign by giving written notice to the Board, the Chairman, the
President or the Secretary. Such resignation shall take effect at the time
specified therein or, if the time be not specified therein, upon receipt
thereof; and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
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SECTION 13. Removal of Directors. Directors may be removed only
as provided in Section 4 of Article VI of the Certificate.
SECTION 14. Vacancies. Subject to the rights of the holders of
any series of Preferred Stock or Series Common Stock or any class or series of
stock having a preference over the Common Stock of the Corporation as to
dividends or upon liquidation, any vacancies on the Board resulting from death,
resignation, removal or other cause shall only be filled by the Board by the
affirmative vote of a majority of the remaining directors then in office, even
though less than a quorum of the Board, or by a sole remaining director, and
newly created directorships resulting from any increase in the number of
directors shall be filled by the Board, or if not so filled, by the stockholders
at the next annual meeting thereof or at a special meeting called for that
purpose in accordance with Section 3 of Article II of these By-laws. Any
director elected in accordance with the preceding sentence of this Section 14
shall hold office for the remainder of the full term of the class of directors
in which the new directorship was created or the vacancy occurred and until such
director's successor shall have been elected and qualified.
SECTION 15. Compensation. Each director, in consideration of such
person serving as a director, shall be entitled to receive from the Corporation
such amount per annum and such fees (payable in cash or stock) for attendance at
meetings of the Board or of committees of the Board, or both, as the Board shall
from time to time determine. In addition, each director shall be entitled to
receive from the Corporation reimbursement for the reasonable expenses incurred
by such person in connection with the performance of such person's duties as a
director. Nothing contained in this Section shall preclude any director from
serving the Corporation or any of its subsidiaries in any other capacity and
receiving proper compensation therefor.
SECTION 16. Independent Directors.
(a) Independence of Members of Board of Directors at Time
of Nomination. At the time that the Board determines the slate of directors for
election at an Annual Meeting of
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Stockholders, a majority of the members of the Board, assuming the election of
the nominated slate and taking into account resignations effective on or prior
to such Annual Meeting, shall be determined by the Board to be eligible to be
classified as independent directors.
(b) Directors Elected to Fill Vacancies on the Board or
Newly Created Directorships. If the Board elects directors between Annual
Meetings of Stockholders to fill vacancies or newly created directorships, the
majority of all directors holding office immediately after such elections shall
be determined by the Board to be eligible to be classified as independent
directors.
(c) Determination of Independence of Directors. In its
determination of a director's eligibility to be classified as an independent
director pursuant to this Section 16, the Board shall consider, among such other
factors as it may in any case deem relevant, that the director: (i) has not been
employed by the Corporation as an executive officer within the past three years;
(ii) is not a paid adviser or consultant to the Corporation and derives no
financial benefit from any entity as a result of advice or consultancy provided
to the Corporation by such entity; (iii) is not an executive officer, director
or significant stockholder of a significant customer or supplier of the
Corporation; (iv) has no personal services contract with the Corporation; (v) is
not an executive officer or director of a tax-exempt entity receiving a
significant part of its annual contributions from the Corporation; (vi) is not a
member of the immediate family of any director who is not considered an
independent director; and (vii) is free of any other relationship that would
interfere with the exercise of independent judgment by such director.
ARTICLE IV
Committees of the Board of Directors
SECTION 1. Establishment of Committees of the Board of Directors;
Election of Members of Committees of the Board of Directors; Functions of
Committees of the Board of Directors. The
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Board may, in accordance with and subject to the General Corporation Law of the
State of Delaware, from time to time establish committees of the Board to
exercise such powers and authorities of the Board, and to perform such other
functions, as the Board may from time to time determine.
SECTION 2. Procedure; Meetings; Quorum. Regular meetings of
committees of the Board, of which no notice shall be necessary, may be held at
such times and places as shall be fixed by resolution adopted by a majority of
the members thereof. Special meetings of any committee of the Board shall be
called at the request of any member thereof. Notice of each special meeting of
any committee of the Board shall be sent by overnight delivery service, or
mailed to each member thereof, in either case addressed to such member at such
member's residence or usual place of business, at least two days before the day
on which the meeting is to be held or shall be sent to such member at such place
by telegraph or telecopy or be given personally or by telephone, not later than
the day before the meeting is to be held, but notice need not be given to any
member who shall, either before or after the meeting, submit a signed waiver of
such notice or who shall attend such meeting without protesting, prior to or at
its commencement, the lack of such notice to such member. Any special meeting of
any committee of the Board shall be a legal meeting without any notice thereof
having been given, if all the members thereof shall be present thereat and no
member shall protest the lack of notice to such member. Notice of any adjourned
meeting of any committee of the Board need not be given. Any committee of the
Board may adopt such rules and regulations not inconsistent with the provisions
of law, the Certificate or these By-laws for the conduct of its meetings as such
committee of the Board may deem proper. A majority of the members of any
committee of the Board shall constitute a quorum for the transaction of business
at any meeting, and the vote of a majority of the members thereof present at any
meeting at which a quorum is present shall be the act of such committee. Each
committee of the Board shall keep written minutes of its proceedings and shall
report on such proceedings to the Board.
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ARTICLE V
Officers
SECTION 1. Number; Term of Office. The officers of the
Corporation shall be such officers, which may include a Chairman of the Board,
Chief Executive Officer or Co-Chief Executive Officers, President, Chief
Operating Officer, Chairman of the Executive Committee and one or more Vice
Chairmen and Vice Presidents (including, without limitation, Assistant,
Executive, Senior and Group Vice Presidents) and a Treasurer, Secretary and
Controller and such other officers or agents with such titles and such duties as
the Board may from time to time determine, each to have such authority,
functions or duties as in these By-laws provided or as the Board may from time
to time determine, and each to hold office for such term as may be prescribed by
the Board and until such person's successor shall have been chosen and shall
qualify, or until such person's death or resignation, or until such person's
removal in the manner hereinafter provided. The Chairman, the Chief Executive
Officers, the Vice-Chairmen, the Chairman of the Executive Committee, and the
President, if any, shall be elected from among the directors. One person may
hold the offices and perform the duties of any two or more of said officers;
provided, however, that no officer shall execute, acknowledge or verify any
instrument in more than one capacity if such instrument is required by law, the
Certificate or these By-laws to be executed, acknowledged or verified by two or
more officers. The Board may from time to time authorize any officer to appoint
and remove any such other officers and agents and to prescribe their powers and
duties. The Board may require any officer or agent to give security for the
faithful performance of such person's duties.
Except as otherwise provided by these By-laws, any reference to
the Chairman or Chief Executive Officer in these Bylaws shall be deemed to mean,
if there are Co-Chairmen or Co-Chief Executive Officers, either Co-Chairmen or
either Co-Chief Executive Officer, each of whom may severally exercise the full
powers and authorities of the office of Chairman or Chief Executive Officer, as
the case may be.
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SECTION 2. Removal. Any officer may be removed, either with or
without cause, by the Board at any meeting thereof called for the purpose or,
except in the case of any officer elected by the Board, by any superior officer
upon whom such power may be conferred by the Board.
SECTION 3. Resignation. Any officer may resign at any time by
giving notice to the Board, the Chairman or the Secretary. Any such resignation
shall take effect at the date of receipt of such notice or at any later date
specified therein; and, unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
SECTION 4. Vacancies. A vacancy in any office because of death,
resignation, removal or any other cause may be filled for the unexpired portion
of the term in the manner prescribed in these By-laws for election to such
office.
SECTION 5. Chairman of the Board. The Chairman shall, if present,
preside at meetings of the Board and, if present, preside at meetings of the
stockholders, and, if present and in the absence of the Chairman of the
Executive Committee, preside at meetings of the Executive Committee. The
Chairman may sign and execute in the name of the Corporation deeds, mortgages,
bonds, contracts or other instruments. The Chairman shall, when requested,
counsel with and advise the other officers of the Corporation and shall perform
such other duties as he may agree with the Chief Executive Officer or as the
Board may from time to time determine.
SECTION 6. Chief Executive Officer. The Chief Executive Officer
shall have general supervision and direction of the business and affairs of the
Corporation, subject to the control of the Board. The Chief Executive Officer
may sign and execute in the name of the Corporation deeds, mortgages, bonds,
contracts or other instruments. The Chief Executive Officer shall, when
requested, counsel with and advise the other officers of the Corporation and
shall perform such other duties as the Board may from time to time determine.
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SECTION 7. The President. The President shall perform such senior
executive duties as the Board shall from time to time determine. The President
shall, if present and in the absence of the Chairman, preside at meetings of the
stockholders and, if present and in the absence of the Chairman, preside at
meetings of the Board and, if present and in the absence of the Chairman of the
Executive Committee and the Chairman of the Board, preside at meetings of the
Executive Committee. The President may sign and execute in the name of the
Corporation deeds, mortgages, bonds, contracts or other instruments. The
President shall, when requested, counsel with and advise the other officers of
the Corporation and shall perform such other duties as he may agree with the
Chief Executive Officer or as the Board may from time to time determine.
SECTION 8. Chief Operating Officer. The Chief Operating Officer
shall perform such senior duties in connection with the operations of the
Corporation as the Board or the Chief Executive Officer shall from time to time
determine. The Chief Operating Officer may sign and execute in the name of the
Corporation deeds, mortgages, bonds, contracts and other instruments. The Chief
Operating Officer, shall, when requested, counsel with and advise the other
officers of the Corporation and shall perform such other duties as he may agree
with the Chief Executive Officer or as the Board may from time to time
determine.
SECTION 9. Vice-Chairman of the Board. In the absence of the
Chairman of the Board and the President, the Vice-Chairman of the Board (the
"Vice Chairman") if one shall have been elected, or if there shall be more than
one, a Vice-Chairman as designated by the Chairman or the President, or, in the
absence of such designation, as designated by the Board, shall, if present,
preside at meetings of the Board. The Vice Chairman may sign and execute in the
name of the Corporation deeds, mortgages, bonds, contracts or other instruments.
The Vice Chairman shall, when requested, counsel with and advise the other
officers of the Corporation and shall perform such other duties as he may agree
with the Chief Executive Officer or as the Board may from time to time
determine.
SECTION 10. Chairman of the Executive Committee. The Chairman of
the Executive Committee shall, if present, preside at
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meetings of the Executive Committee. The Chairman of the Executive Committee
shall perform such other duties as the Board or the Executive Committee may from
time to time determine. The Chairman of the Executive Committee shall, when
requested, counsel with and advise the other officers of the Corporation and
shall perform such other duties as he may agree with the Chief Executive Officer
or as the Board may from time to time determine.
SECTION 11. Chief Financial Officer. The Chief Financial Officer
of the Corporation, if one shall have been elected, shall perform all the powers
and duties of the office of the chief financial officer and in general have
overall supervision of the financial operations of the Corporation. The Chief
Financial Officer may sign and execute in the name of the Corporation deeds,
mortgages, bonds, contracts or other instruments. The Chief Financial Officer
shall, when requested, counsel with and advise the other officers of the
Corporation and shall perform such other duties as he may agree with the Chief
Executive Officer or as the Board may from time to time determine.
SECTION 12. Vice-Presidents. Any Vice-President shall have such
powers and duties as shall be prescribed by his superior officer or the Board.
Any Vice-President may sign and execute in the name of the Corporation deeds,
mortgages, bonds, contracts or other instruments. The Vice President shall, when
requested, counsel with and advise the other officers of the Corporation and
shall perform such other duties as he may agree with the Chief Executive Officer
or as the Board may from time to time determine.
SECTION 13. Treasurer. The Treasurer, if one shall have been
elected, shall supervise and be responsible for all the funds and securities of
the Corporation; the deposit of all moneys and other valuables to the credit of
the Corporation in depositories of the Corporation; borrowings and compliance
with the provisions of all indentures, agreements and instruments governing such
borrowings to which the Corporation is a party; the disbursement of funds of the
Corporation and the investment of its funds; and in general shall perform all of
the duties incident to the office of the Treasurer. The Treasurer may sign and
execute in the name of the Corporation deeds, mortgages, bonds, contracts or
other instruments. The Treasurer shall, when requested, counsel with and
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advise the other officers of the Corporation and shall perform such other duties
as he may agree with the Chief Executive Officer or as the Board may from time
to time determine.
SECTION 14. Controller. The Controller shall be the chief
accounting officer of the Corporation. The Controller may sign and execute in
the name of the Corporation deeds, mortgages, bonds, contracts or other
instruments. The Controller shall, when requested, counsel with and advise the
other officers of the Corporation and shall perform such other duties as he may
agree with the Chief Executive Officer or the Chief Financial Officer or as the
Board may from time to time determine.
SECTION 15. Secretary. It shall be the duty of the Secretary to
act as secretary at all meetings of the Board, of the committees of the Board
and of the stockholders and to record the proceedings of such meetings in a book
or books to be kept for that purpose; the Secretary shall see that all notices
required to be given by the Corporation are duly given and served; the Secretary
shall be custodian of the seal of the Corporation and shall affix the seal or
cause it to be affixed to all certificates of stock of the Corporation (unless
the seal of the Corporation on such certificates shall be a facsimile, as
hereinafter provided) and to all documents, the execution of which on behalf of
the Corporation under its seal is duly authorized in accordance with the
provisions of these By-laws; the Secretary shall have charge of the books,
records and papers of the Corporation and shall see that the reports, statements
and other documents required by law to be kept and filed are properly kept and
filed; and in general shall perform all of the duties incident to the office of
Secretary. The Secretary shall, when requested, counsel with and advise the
other officers of the Corporation and shall perform such other duties as he may
agree with the Chief Executive Officer or as the Board may from time to time
determine.
SECTION 16. Assistant Treasurers and Assistant Secretaries. Any
Assistant Treasurers and Assistant Secretaries shall perform such duties as
shall be assigned to them by the Board. Any Assistant Treasurer or Assistant
Secretary shall perform such duties as shall be assigned to them by the
Treasurer or Secretary, respectively, or by the Chairman of the Board or by
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the Chief Executive Officer.
ARTICLE VI
Indemnification
SECTION 1. Right to Indemnification. The Corporation, to the
fullest extent permitted or required by Delaware General Corporation Law or
other applicable law, as the same exists or may hereafter be amended (but, in
the case of any such amendment and unless applicable law otherwise requires,
only to the extent that such amendment permits the Corporation to provide
broader indemnification rights than such law permitted the Corporation to
provide prior to such amendment), shall indemnify and hold harmless any person
who is or was a director or officer of the Corporation and who is or was
involved in any manner (including, without limitation, as a party or a witness)
or is threatened to be made so involved in any threatened, pending or completed
investigation, claim, action, suit or proceeding, whether civil, criminal,
administrative or investigative (including, without limitation, any action, suit
or proceedings by or in the right of the Corporation to procure a judgment in
its favor) (a "Proceeding") by reason of the fact that such person 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
(including, without limitation, any employee benefit plan) (a "Covered Entity")
against all expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by such person in connection
with such Proceeding; provided, however, that the foregoing shall not apply to a
director or officer of the Corporation with respect to a Proceeding that was
commenced by such director or officer unless the proceeding was commenced after
a Change in Control (as hereinafter defined in Section 4(e) of this Article).
Any director or officer of the Corporation entitled to indemnification as
provided in this Section 1 is hereinafter called an "Indemnitee". Any right of
an Indemnitee to indemnification shall be a contract right and shall include the
right to receive, prior to the conclusion of any Proceeding, payment of any
expenses incurred by the Indemnitee in connection with such proceeding,
consistent with
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the provisions of applicable law as then in effect and the other provisions of
this Article.
SECTION 2. Insurance, Contracts and Funding. The Corporation may
purchase and maintain insurance to protect itself and any director, officer,
employee or agent of the Corporation or of any Covered Entity against any
expenses, judgments, fines and amounts paid in settlement as specified in
Section 1 of this Article or incurred by any such director, officer, employee or
agent in connection with any Proceeding referred to in Section 1 of this
Article, whether or not the Corporation would have the power to indemnify such
person against such expense, liability or loss under the DGCL. The Corporation
may enter into contracts with any director, officer, employee or agent of the
Corporation or of any Covered Entity in furtherance of the provisions of this
Article and may create a trust fund, grant a security interest or use other
means (including, without limitation, a letter of credit) to ensure the payment
of such amounts as may be necessary to effect indemnification as provided or
authorized in this Article.
SECTION 3. Indemnification Not Exclusive Right. The right of
indemnification provided in this Article shall not be exclusive of any other
rights to which an Indemnitee may otherwise be entitled, and the provisions of
this Article shall inure to the benefit of the heirs and legal representatives
of any Indemnitee under this Article and shall be applicable to Proceedings
commenced or continuing after the adoption of this Article, whether arising from
acts or omissions occurring before or after such adoption.
SECTION 4. Advancement of Expenses; Procedures; Presumptions and
Effect of Certain Proceedings; Remedies. In furtherance, but not in limitation
of the foregoing provisions, the following procedures, presumptions and remedies
shall apply with respect to advancement of expenses and the right to
indemnification under this Article:
(a) Advancement of Expenses. All reasonable expenses
(including attorney's fees) incurred by or on behalf of the Indemnitee in
connection with any Proceeding shall be advanced to the Indemnitee by the
Corporation within 20 days after the receipt by the Corporation of a statement
or statements from the
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Indemnitee requesting such advance or advances from time to time, whether prior
to or after final disposition of such Proceeding. Such statement or statements
shall reasonably evidence the expenses incurred by the Indemnitee and, if
required by law at the time of such advance, shall include or be accompanied by
an undertaking by or on behalf of the Indemnitee to repay the amounts advanced
if ultimately it should be determined that the Indemnitee is not entitled to be
indemnified against such expenses pursuant to this Article.
(b) Procedure for Determination of Entitlement to
Indemnification. (i) To obtain indemnification under this Article, an Indemnitee
shall submit to the Secretary a written request, including such documentation
and information as is reasonably available to the Indemnitee and reasonably
necessary to determine whether and to what extent the Indemnitee is entitled to
indemnification (the "Supporting Documentation"). The determination of the
Indemnitee's entitlement to indemnification shall be made not later than 60 days
after receipt by the Corporation of the written request for indemnification
together with the Supporting Documentation. The Secretary shall, promptly upon
receipt of such a request for indemnification, advise the Board in writing that
the Indemnitee has requested indemnification.
(ii) The Indemnitee's entitlement to indemnification under
this Article shall be determined in one of the following ways: (A) by a majority
vote of the Disinterested Directors (as hereinafter defined in Section 4(e) of
this Article), whether or not they constitute a quorum of the Board; (B) by a
written opinion of Independent Counsel (as hereinafter defined in Section 4(e)
of this Article) if (x) a Change in Control (as hereinafter defined in Section
4(e) of this Article) shall have occurred and the Indemnitee so requests or (y)
there are no Disinterested Directors or a majority of such Disinterested
Directors so directs; (C) by the stockholders of the Corporation; or (D) as
provided in Section 4(c) of this Article.
(iii) In the event the determination of entitlement to
indemnification is to be made by Independent Counsel pursuant to Section 4(b)
(ii) of this Article, a majority of the Disinterested Directors shall select the
Independent Counsel, but only an
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Independent Counsel to which the Indemnitee does not reasonably object;
provided, however, that if a Change in Control shall have occurred, the
Indemnitee shall select such Independent Counsel, but only an Independent
Counsel to which a majority of the Disinterested Directors does not reasonably
object.
(c) Presumptions and Effect of Certain Proceedings. Except
as otherwise expressly provided in this Article, if a Change in Control shall
have occurred, the Indemnitee shall be presumed to be entitled to
indemnification under this Article (with respect to actions or omissions
occurring prior to such Change in Control) upon submission of a request for
indemnification together with the Supporting Documentation in accordance with
Section 4(b)(i) of this Article, and thereafter the Corporation shall have the
burden of proof to overcome that presumption in reaching a contrary
determination. In any event, if the person or persons empowered under Section
4(b) of this Article to determine entitlement to indemnification shall not have
been appointed or shall not have made a determination within 60 days after
receipt by the Corporation of the request therefor, together with the Supporting
Documentation, the Indemnitee shall be deemed to be, and shall be, entitled to
indemnification unless (A) the Indemnitee misrepresented or failed to disclose a
material fact in making the request for indemnification or in the Supporting
Documentation or (B) such indemnification is prohibited by law. The termination
of any Proceeding described in Section 1 of this Article, or of any claim, issue
or matter therein, by judgment, order, settlement or conviction, or upon a plea
of nolo contendere or its equivalent, shall not, of itself, adversely affect the
right of the Indemnitee to indemnification or create a presumption that the
Indemnitee did not act in good faith and in a manner which the Indemnitee
reasonably believed to be in or not opposed to the best interests of the
Corporation or, with respect to any criminal proceeding, that the Indemnitee had
reasonable cause to believe that such conduct was unlawful.
(d) Remedies of Indemnitee. (i) In the event that a
determination is made pursuant to Section 4(b) of this Article that the
Indemnitee is not entitled to indemnification under this Article, (A) the
Indemnitee shall be entitled to seek an adjudication of entitlement to such
indemnification either, at the
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Indemnitee's sole option, in (x) an appropriate court of the State of Delaware
or any other court of competent jurisdiction or (y) an arbitration to be
conducted by a single arbitrator pursuant to the rules of the American
Arbitration Association; (B) any such judicial proceeding or arbitration shall
be de novo and the Indemnitee shall not be prejudiced by reason of such adverse
determination; and (C) if a Change in Control shall have occurred, in any such
judicial proceeding or arbitration, the Corporation shall have the burden of
proving that the Indemnitee is not entitled to indemnification under this
Article (with respect to actions or omissions occurring prior to such Change in
Control).
(ii) If a determination shall have been made or deemed to
have been made, pursuant to Section 4(b) or (c) of this Article, that the
Indemnitee is entitled to indemnification, the Corporation shall be obligated to
pay the amounts constituting such indemnification within five days after such
determination has been made or deemed to have been made and shall be
conclusively bound by such determination unless (A) the Indemnitee
misrepresented or failed to disclose a material fact in making the request for
indemnification or in the Supporting Documentation or (B) such indemnification
is prohibited by law. In the event that (X) advancement of expenses is not
timely made pursuant to Section 4(a) of this Article or (Y) payment of
indemnification is not made within five days after a determination of
entitlement to indemnification has been made or deemed to have been made
pursuant to Section 4(b) or (c) of this Article, the Indemnitee shall be
entitled to seek judicial enforcement of the Corporation's obligation to pay to
the Indemnitee such advancement of expenses or indemnification. Notwithstanding
the foregoing, the Corporation may bring an action, in an appropriate court in
the State of Delaware or any other court of competent jurisdiction, contesting
the right of the Indemnitee to receive indemnification hereunder, due to the
occurrence of an event described in sub-clause (A) or (B) of this clause (ii) (a
"Disqualifying Event"); provided, however, that in any such action the
Corporation shall have the burden of proving the occurrence of such
Disqualifying Event.
(iii) The Corporation shall be precluded from asserting in
any judicial proceeding or arbitration commenced pursuant to this Section 4(d)
that the procedures and presumptions
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of this Article are not valid, binding and enforceable and shall stipulate in
any such court or before any such arbitrator that the Corporation is bound by
all the provisions of this Article.
(iv) In the event that the Indemnitee, pursuant to this
Section 4(d), seeks a judicial adjudication of or an award in arbitration to
enforce rights under, or to recover damages for breach of, this Article, the
Indemnitee shall be entitled to recover from the Corporation, and shall be
indemnified by the Corporation against, any expenses actually and reasonably
incurred by the Indemnitee if the Indemnitee prevails in such judicial
adjudication or arbitration. If it shall be determined in such judicial
adjudication or arbitration that the Indemnitee is entitled to receive part but
not all of the indemnification or advancement of expenses sought, the expenses
incurred by the Indemnitee in connection with such judicial adjudication or
arbitration shall be prorated accordingly.
(e) Definitions. For purposes of this Section 4:
(i) "Authorized Officer" means any one of the Chairman,
the President, a Vice Chairman, the Chief Financial Officer, any Vice President
or the Secretary of the Corporation.
(ii) "Change in Control" means the occurrence of any of
the following (w) any merger or consolidation of the Corporation in which the
Corporation is not the continuing or surviving corporation or pursuant to which
shares of the Corporation's Common Stock would be converted into cash,
securities or other property, other than a merger of the Corporation in which
the holders of the Corporation's Common Stock immediately prior to the merger
have the same proportionate ownership of common stock of the surviving
corporation immediately after the merger, (x) any sale, lease, exchange or other
transfer (in one transaction or a series of related transactions) of all, or
substantially all, the assets of the Corporation, or the liquidation or
dissolution of the Corporation, (y) any person (as such term is defined in
Section 4(c) of Article V of the Certificate of Incorporation) shall become an
Interested Stockholder (as defined therein) without the prior consent of the
Board, or (z) during any period of two consecutive years, individuals who at the
beginning of such period who shall
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have constituted the entire Board shall have ceased for any reason to constitute
a majority thereof unless the election, or the nomination for election by the
Corporation's stockholders, of each new director shall have been approved by a
vote of at least two-thirds of the directors then still in office who were
directors at the beginning of the period.
(iii) "Disinterested Director" means a director of the
Corporation who is not or was not a party to the Proceeding in respect of which
indemnification is sought by the Indemnitee.
(iv) "Independent Counsel" means a law firm or a member of
a law firm that neither presently is, nor in the past five years has been,
retained to represent: (x) the Corporation or the Indemnitee in any matter
material to either such party or (y) any other party to the Proceeding giving
rise to a claim for indemnification under this Article. Notwithstanding the
foregoing, the term "Independent Counsel" shall not include any person who,
under the applicable standards of professional conduct then prevailing under the
law of the State of Delaware, would have a conflict of interest in representing
either the Corporation or the Indemnitee in an action to determine the
Indemnitee's rights under this Article.
SECTION 5. Severability. If any provision or provisions of this
Article shall be held to be invalid, illegal or unenforceable for any reason
whatsoever: (a) the validity, legality and enforceability of the remaining
provisions of this Article (including, without limitation, all portions of any
paragraph of this Article containing any such provision held to be invalid,
illegal or unenforceable, that are not themselves invalid, illegal or
unenforceable) shall not in any way be affected or impaired thereby; and (b) to
the fullest extent possible, the provisions of this Article (including, without
limitation, all portions of any paragraph of this Article containing any such
provision held to be invalid, illegal or unenforceable, that are not themselves
invalid, illegal or enforceable) shall be construed so as to give effect to the
intent manifested by the provision held invalid, illegal or unenforceable.
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SECTION 6. Indemnification of Employees Serving as Directors. The
Corporation, to the fullest extent of the provisions of this Article with
respect to the indemnification of directors and officers of the Corporation,
shall indemnify any person who is or was an employee of the Corporation and who
is or was involved in any manner (including, without limitation, as a party or a
witness) or is threatened to be made so involved in any threatened, pending or
completed Proceeding by reason of the fact that such employee is or was serving
(a) as a director of a corporation in which the Corporation had at the time of
such service, directly or indirectly, a 50 percent or greater equity interest (a
"Subsidiary Director") and (b) at the written request of an Authorized Officer,
as a director of another corporation in which the Corporation had at the time of
such service, directly or indirectly, a less than 50 percent equity interest (or
no equity interest at all) or in a capacity equivalent to that of a director for
any partnership, joint venture, trust or other enterprise (including, without
limitation, any employee benefit plan) in which the Corporation has an interest
(a "Requested Employee"), against all expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such Subsidiary Director or Requested Employee in connection with such
Proceeding. The Corporation may also advance expenses incurred by any such
Subsidiary Director or Requested Employee in connection with any such
Proceeding, consistent with the provisions of this Article with respect to the
advancement of expenses of directors and officers of the Corporation.
SECTION 7. Indemnification of Employees and Agents.
Notwithstanding any other provision or provisions of this Article, the
Corporation, to the fullest extent of the provisions of this Article with
respect to the indemnification of directors and officers of the Corporation, may
indemnify any person other than a director or officer of the Corporation, a
Subsidiary Director or a Requested Employee, who is or was an employee or agent
of the Corporation and who is or was involved in any manner (including, without
limitation, as a party or a witness) or is threatened to be made so involved in
any threatened, pending or completed Proceeding by reason of the fact that such
person is or was a director, officer, employee or agent of a Covered Entity
against all expenses (including attorneys' fees), judgments, fines and amounts
paid in
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settlement actually and reasonably incurred by such person in connection with
such Proceeding. The Corporation may also advance expenses incurred by such
employee or agent in connection with any such Proceeding, consistent with the
provisions of this Article with respect to the advancement of expenses of
directors and officers of the Corporation.
ARTICLE VII
Capital Stock
SECTION 1. Certificates for Shares. Certificates representing
shares of stock of each class of the Corporation, whenever authorized by the
Board, shall be in such form as shall be approved by the Board. The certificates
representing shares of stock of each class shall be signed by, or in the name
of, the Corporation by the Chairman or the President, a Vice Chairman or any
Vice-President and by the Secretary or any Assistant Secretary or the Treasurer
or any Assistant Treasurer of the Corporation, and sealed with the seal of the
Corporation, which may be a facsimile thereof. Any or all such signatures may be
facsimiles if countersigned by a transfer agent or registrar. Although any
officer, transfer agent or registrar whose manual or facsimile signature is
affixed to such a certificate ceases to be such officer, transfer agent or
registrar before such certificate has been issued, it may nevertheless be issued
by the Corporation with the same effect as if such officer, transfer agent or
registrar were still such at the date of its issue.
The stock ledger and blank share certificates shall be kept by
the Secretary or by a transfer agent or by a registrar or by any other officer
or agent designated by the Board.
SECTION 2. Transfer of Shares. Transfers of shares of stock of
each class of the Corporation shall be made only on the books of the Corporation
by the holder thereof, or by such holder's attorney thereunto authorized by a
power of attorney duly executed and filed with the Secretary or a transfer agent
for such stock, if any, and on surrender of the certificate or certificates for
such shares properly endorsed or accompanied by a duly executed stock
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transfer power (or by proper evidence of succession, assignment or authority to
transfer) and the payment of any taxes thereon; provided, however, that the
Corporation shall be entitled to recognize and enforce any lawful restriction on
transfer. The person in whose name shares are registered on the books of the
Corporation shall be deemed the owner thereof for all purposes as regards the
Corporation; provided, however, that whenever any transfer of shares shall be
made for collateral security and not absolutely, and written notice thereof
shall be given to the Secretary or to such transfer agent, such fact shall be
stated in the entry of the transfer. No transfer of shares shall be valid as
against the Corporation, its stockholders and creditors for any purpose, except
to render the transferee liable for the debts of the Corporation to the extent
provided by law, until it shall have been entered in the stock records of the
Corporation by an entry showing from and to whom transferred.
SECTION 3. Registered Stockholders and Addresses of Stockholders.
The Corporation shall be entitled to recognize the exclusive right of a person
registered on its records as the owner of shares of stock to receive dividends
and to vote as such owner, shall be entitled to hold liable for calls and
assessments a person registered on its records as the owner of shares of stock,
and shall not be bound to recognize any equitable or other claim to or interest
in such share or shares of stock on the part of any other person, whether or not
it shall have express or other notice thereof, except as otherwise provided by
the laws of Delaware.
Each stockholder shall designate to the Secretary or transfer
agent of the Corporation an address at which notices of meetings and all other
corporate notices may be served or mailed to such person, and, if any
stockholder shall fail to designate such address, corporate notices may be
served upon such person by mail directed to such person at such person's post
office address, if any, as the same appears on the stock record books of the
Corporation or at such person's last known post office address.
SECTION 4. Lost, Destroyed and Mutilated Certificates. The holder
of any share of stock of the Corporation shall immediately notify the
Corporation of any loss, theft, destruction or mutilation of the certificate
therefor; the Corporation may
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issue to such holder a new certificate or certificates for shares, upon the
surrender of the mutilated certificate or, in the case of loss, theft or
destruction of the certificate, upon satisfactory proof of such loss, theft or
destruction; the Board, or a committee designated thereby, or the transfer
agents and registrars for the stock, may, in their discretion, require the owner
of the lost, stolen or destroyed certificate, or such person's legal
representative, to give the Corporation a bond in such sum and with such surety
or sureties as they may direct to indemnify the Corporation and said transfer
agents and registrars against any claim that may be made on account of the
alleged loss, theft or destruction of any such certificate or the issuance of
such new certificate.
SECTION 5. Regulations. The Board may make such additional rules
and regulations as it may deem expedient concerning the issue and transfer of
certificates representing shares of stock of each class of the Corporation and
may make such rules and take such action as it may deem expedient concerning the
issue of certificates in lieu of certificates claimed to have been lost,
destroyed, stolen or mutilated.
SECTION 6. Fixing Date for 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,
or entitled to receive payment of any dividend or other distribution or
allotment or 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 may fix, in advance, a record date, which shall not be more
than 60 nor less than 10 days before the date of such meeting, nor more than 60
days prior to any other action. A determination of stockholders entitled to
notice of or to vote at a meeting of the stockholders shall apply to any
adjournment of the meeting; provided, however, that the Board may fix a new
record date for the adjourned meeting.
SECTION 7. Transfer Agents and Registrars. The Board may appoint,
or authorize any officer or officers to appoint, one or more transfer agents and
one or more registrars.
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ARTICLE VIII
Seal
The Board shall provide a corporate seal, which shall be in the
form of a circle and shall bear the full name of the Corporation and the words
and figures of "Corporate Seal Delaware 1983", or such other words or figures as
the Board may approve and adopt. The seal may be used by causing it or a
facsimile thereof to be impressed or affixed or in any other manner reproduced.
ARTICLE IX
Fiscal Year
The fiscal year of the Corporation shall end on the 31st day of
December in each year.
ARTICLE X
Waiver of Notice
Whenever any notice whatsoever is required to be given by these
By-laws, by the Certificate or by law, the person entitled thereto may, either
before or after the meeting or other matter in respect of which such notice is
to be given, waive such notice in writing, which writing shall be filed with or
entered upon the records of the meeting or the records kept with respect to such
other matter, as the case may be, and in such event such notice need not be
given to such person and such waiver shall be deemed equivalent to such notice.
ARTICLE XI
Amendments
Any By-law (other than this Article XI) may be adopted, repealed,
altered or amended by a majority of the entire Board at
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any meeting thereof, provided that such proposed action in respect thereof shall
be stated in the notice of such Meeting. The stockholders of the Corporation
shall have the power to amend, alter or repeal any provision of these By-laws
only to the extent and in the manner provided in the Certificate.
ARTICLE XII
Miscellaneous
SECTION 1. Execution of Documents. The Board or any committee
thereof shall designate the officers, employees and agents of the Corporation
who shall have power to execute and deliver deeds, contracts, mortgages, bonds,
debentures, notes, checks, drafts and other orders for the payment of money and
other documents for and in the name of the Corporation and may authorize
(including authority to redelegate) by written instrument to other officers,
employees or agents of the Corporation. Such delegation may be by resolution or
otherwise and the authority granted shall be general or confined to specific
matters, all as the Board or any such committee may determine. In the absence of
such designation referred to in the first sentence of this Section, the officers
of the Corporation shall have such power so referred to, to the extent incident
to the normal performance of their duties.
SECTION 2. Deposits. All funds of the Corporation not otherwise
employed shall be deposited from time to time to the credit of the Corporation
or otherwise as the Board or any committee thereof or any officer of the
Corporation to whom power in respect of financial operations shall have been
delegated by the Board or any such committee or in these By-laws shall select.
SECTION 3. Checks. All checks, drafts and other orders for the
payment of money out of the funds of the Corporation, and all notes or other
evidences of indebtedness of the Corporation, shall be signed on behalf of the
Corporation in such manner as shall from time to time be determined by
resolution of the Board or of any committee thereof or by any officer of the
Corporation to whom power in respect of financial operations shall have been
delegated by the Board or any such committee thereof or as set forth in these
By-laws.
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SECTION 4. Proxies in Respect of Stock or Other Securities of
Other Corporations. The Board or any committee thereof shall designate the
officers of the Corporation who shall have authority from time to time to
appoint an agent or agents of the Corporation to exercise in the name and on
behalf of the Corporation the powers and rights which the Corporation may have
as the holder of stock or other securities in any other corporation or other
entity, and to vote or consent in respect of such stock or securities; such
designated officers may instruct the person or persons so appointed as to the
manner of exercising such powers and rights; and such designated officers may
execute or cause to be executed in the name and on behalf of the Corporation and
under its corporate seal, or otherwise, such written proxies, powers of attorney
or other instruments as they may deem necessary or proper in order that the
Corporation may exercise its said powers and rights.
SECTION 5. Subject to Law and Certificate of Incorporation. All
powers, duties and responsibilities provided for in these By-laws, whether or
not explicitly so qualified, are qualified by the provisions of the Certificate
and applicable laws.
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