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FORM OF AMENDED AND RESTATED
BY-LAWS
OF
UNITED METRO MATERIALS INC.
ARTICLE I.
OFFICES
SECTION 1.1. REGISTERED OFFICE AND AGENT. The registered
office of United Metro Materials Inc. (the "Corporation") is at 1209 Orange
Street, Wilmington, New Castle County, Delaware 19801. The registered agent at
that address is The Corporation Trust Company.
SECTION 1.2. OTHER OFFICES. The Corporation may have other
offices from time to time as the directors may designate or as the business may
require.
ARTICLE II.
STOCKHOLDERS
SECTION 2.1. ANNUAL MEETINGS. The annual meeting of
stockholders shall be held at such place, date, and time as is designated by the
Board of Directors. At this meeting, directors shall be elected and any other
proper business may be transacted.
SECTION 2.2. SPECIAL MEETINGS. Special meetings of the
stockholders of the Corporation may be called for any purpose or purposes by the
Chairman of the Board, the President or by a majority of the directors. Special
meetings of the stockholders of the Corporation may not be called by any other
person or persons. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice of the meeting.
SECTION 2.3. PLACE OF MEETINGS. Meetings of stockholders shall
be held at such place, either within or without the State of Delaware, as shall
be designated by those calling the meeting.
SECTION 2.4. NOTICES OF MEETINGS. A written notice shall be
given to each stockholder entitled to vote at the meeting not less than 10 nor
more than 60 days before each annual or special meeting. The notice shall state
the place, date, and hour of the meeting. The notice of a special meeting shall
state the purposes for which the meeting has been called. Written notices may be
given by either personal delivery or mail. 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. No notice is
required to be given to a stockholder to whom notices of two consecutive annual
meetings (and any other written notice sent between those meetings) have been
mailed addressed to that person at his address as shown on the corporate records
and have been returned undeliverable.
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SECTION 2.5. WAIVER OF NOTICE. A written waiver, signed by a
stockholder, whether before or after an annual or special meeting, shall be
equivalent to the giving of such notice. Attendance by a stockholder, without
objection to the notice, whether in person or by proxy, at an annual or special
meeting shall constitute waiver of notice of such meeting.
SECTION 2.6. VOTING LIST. At least ten days before each
stockholders' meeting, the Secretary shall prepare a complete list of
stockholders entitled to vote at such meeting. Arranged in alphabetical order,
the list shall show the name, address, and number of shares of each stockholder
entitled to vote. For at least 10 days before the meeting, the list shall be
open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, at (1) the meeting place, or (2) at
another place within the city of the meeting which shall be specified in the
notice of the meeting. The list shall also be available at the meeting for
inspection by any stockholder present.
SECTION 2.7. RECORD DATE. The Board of Directors may fix a
record date to determine which stockholders are entitled to: (a) notice of a
stockholders' meeting; (b) vote at a stockholders' meeting; (c) receive payment
for a dividend; (d) receive a distribution or allotment of rights; (e) exercise
any rights in respect of any change, conversion, or exchange of stock; or (f)
notice for the purpose of any other lawful action. The record date shall not be
less than 10 nor more than 60 days before any such action. 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.
SECTION 2.8. Each stockholder eligible to vote may authorize
another person or persons to act for him by proxy. No proxy shall be valid after
three years from its date, unless the proxy provides for a longer period.
SECTION 2.9. VOTING RIGHTS. Unless otherwise provided in the
Restated Certificate of Incorporation, each stockholder eligible to vote shall
have one vote for each share of capital stock held by such stockholder.
SECTION 2.10. QUORUM AND REQUIRED VOTE. A majority of the
shares entitled to vote, present in person or represented by proxy, shall
constitute a quorum at a meeting of stockholders. Unless otherwise required by
the Restated Certificate of Incorporation or by statute, the affirmative vote of
the majority of shares present in person or represented by proxy at the meeting
and entitled to vote on the subject matter shall be the act of the stockholders.
However, if less than a quorum but more than one-third of all shares eligible to
vote is present at a scheduled meeting, a majority of the shares present may
adjourn the scheduled meeting.
SECTION 2.11. ADJOURNED MEETINGS. No new notice is required if
the time and place of the adjourned meeting is announced at the meeting at which
the adjournment is taken and if the adjournment is for not more than 30 days. At
an adjourned meeting, the stockholders may transact any business which might
have been transacted at the original meeting.
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SECTION 2.12. NO ACTION WITHOUT A MEETING. Any action required
or permitted at a stockholders' meeting may be taken only upon the vote of the
stockholders at an annual or special meeting duly noticed and called, and may
not be taken by a written consent of the stockholders.
SECTION 2.13. CONDUCT OF MEETINGS.
(a) The President of the Corporation shall preside at each
meeting of the stockholders. In the absence of the President, the meeting shall
be chaired by an officer of the Corporation in accordance with the following
order: Chairman of the Board, any Executive Vice President, any Senior Vice
President and any Vice President. In the absence of any of such officers, the
meeting shall be chaired by a person chosen by a majority in interest of the
stockholders present in person or represented by proxy and entitled to vote
thereat, who shall act as chairman. The Secretary or in his or her absence an
Assistant Secretary or a person whom the chairman of the meeting shall appoint
shall act as secretary of the meeting and keep a record of the proceedings
thereof.
(b) The Board of Directors shall be entitled to make such
rules or regulations for the conduct of meeting of stockholders as it shall deem
necessary, appropriate or convenient. Subject to such rules and regulations of
the Board of Directors, if any, the chairman of the meeting shall have the right
and authority to prescribe such rules, regulations and procedures and to do all
such acts as, in the judgment of the chairman, are necessary, appropriate or
convenient for the proper conduct of the meeting including, without limitation,
establishing an agenda or order of business for the meeting, rules and
procedures for maintaining order at the meeting and the safety of those present,
limitations on participation in such meeting to stockholders of record of the
Corporation and their duly authorized and constituted proxies, and such other
persons as the chairman shall permit, restrictions on entry to the meeting after
the time fixed for the commencement thereof, limitations on the time allotted to
questions or comment by participants and regulation of the opening and closing
of the ballot. Unless, and to the extent, determined by the Board of Directors
or the chairman of the meeting, meetings of stockholders shall not be required
to be held in accordance with rules of parliamentary procedure.
SECTION 2.14. ADVANCE NOTIFICATION OF BUSINESS TO BE
TRANSACTED AT STOCKHOLDER MEETINGS.
(a) No business may be transacted at an annual meeting of
stockholders, other than business that is either (a) specified in the notice of
meeting (or any supplement thereto) given by or at the direction of the Board of
Directors (or any duly authorized committee thereof), (b) otherwise properly
brought before the annual meeting by or at the direction of the Board of
Directors (or any duly authorized committee thereof) or (c) otherwise properly
brought before the annual meeting by any stockholder of the Corporation (i) who
is a stockholder of record on the date of the giving of the notice provided for
in this section and on the record date for the determination of stockholders
entitled to vote at such annual meeting and (ii) who complies with the notice
procedures set forth in this section.
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(b) In addition to any other applicable requirements for
business to be properly brought before an annual meeting by a stockholder, such
stockholder must have given timely notice thereof in proper written form to the
Secretary.
(c) To be timely, a stockholder's notice to the Secretary must
be delivered to or mailed and received at the principal executive office of the
Corporation not less than 60 days nor more than 90 days prior to the anniversary
date of the immediately preceding annual meeting of stockholders; provided,
however, that in the event that the annual meeting is called for a date that is
not within 30 days before or after such anniversary date, notice by the
stockholder in order to be timely must be so received not later than the close
of business on the tenth day following the day on which such notice of the date
of the annual meeting was mailed or public disclosure of the date of the annual
meeting was made, whichever first occurs.
(d) To be in proper written form, a stockholder's notice to
the Secretary must set forth as to each matter such 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 record address of such
stockholder, (iii) the class or series and number of shares of capital stock of
the Corporation which are owned beneficially or of record by such stockholder,
(iv) a description of all arrangements or understandings between such
stockholder and any other person or persons (including their names and
addresses) in connection with the proposal of such business by such stockholder
and any material interest of such stockholder in such business and (v) a
representation that such stockholder intends to appear in person or by proxy at
the annual meeting to bring such business before the meeting.
(e) No business shall be conducted at the annual meeting of
stockholders except business brought before the annual meeting in accordance
with the procedures set forth in this section; provided, however, that, once
business has been properly brought before the annual meeting in accordance with
such procedures, nothing in this section shall be deemed to preclude discussion
by any stockholder of any such business. If the chairman of an annual meeting
determines that business was not properly brought before the annual meeting in
accordance with the foregoing procedures, the chairman shall declare to the
meeting that the business was not properly brought before the meeting and such
business shall not be transacted.
ARTICLE III.
DIRECTORS
SECTION 3.1. GENERAL POWERS. The business and affairs of this
Corporation shall be managed by its Board of Directors.
SECTION 3.2. NUMBER AND QUALIFICATIONS. The Board of Directors
shall fix, by resolution from time to time, the number of directors which shall
constitute the whole Board of Directors; provided, however, that such number
shall be no fewer than five and no more than fifteen. Directors need not be
stockholders.
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SECTION 3.3. ELECTION AND TERM. Upon the filing of the
Corporation's Restated Certificate of Incorporation (the "Effective Time"), the
Board of Directors shall be divided into three classes to be designated as Class
I, Class II and Class III. The Board of Directors, by resolution, shall
designate the class in which each of the directors then in office shall serve
upon such classification. The terms of office of the classes of directors so
designated by the Board of Directors shall expire at the times of the annual
meetings of the stockholders as follows: Class I on the first annual meeting of
stockholders following the Effective Time, Class II on the second annual meeting
following the Effective Time and Class III on the third annual meeting following
the Effective Time, or thereafter in each case when their respective successors
are elected and qualified. At each subsequent annual election, the directors
chosen to succeed those whose terms are expiring shall be identified as being of
the same class as the directors whom they succeed, and shall be elected for a
term expiring at the time of the third succeeding annual meeting of
stockholders, or thereafter in each case when their respective successors are
elected and qualified. The number of directorships shall be apportioned among
the classes so as to maintain the classes as nearly equal in number as possible.
SECTION 3.4. VACANCIES. Vacancies, however resulting, and
newly created directorships resulting from any increase in the authorized number
of directors may be filled by a majority of the directors then in office,
although less than a quorum, or by a sole remaining director. Any director
elected to fill such a vacancy or newly created directorship shall hold office
for a term that shall coincide with the term of the class to which such director
shall have been elected.
SECTION 3.5. REMOVAL. Subject to any rights of the holders of
any series of Preferred Stock to elect additional directors under specified
circumstances, any director, or the entire Board of Directors, may be removed
from office at any time, but only for cause and only by the affirmative vote of
the holders of at least eighty percent (80%) of the outstanding stock entitled
to vote thereon.
SECTION 3.6. ANNUAL MEETINGS. The Board of Directors may
provide by resolution for the time and place of annual meetings of the Board of
Directors, without notice other than such resolution.
SECTION 3.7. REGULAR MEETINGS. The Board of Directors may
provide by resolution for the time and place of regular meetings of the Board of
Directors, without notice other than such resolution.
SECTION 3.8. SPECIAL MEETINGS. Special meetings of the Board
of Directors shall be called by the Chairman of the Board or the President. The
person calling the meeting may fix the specific time and place of the meeting.
SECTION 3.9. NOTICE OF MEETING. Notice of any special meeting
of the Board of Directors shall be given to each director at his business or
residence in writing or by telegram or by telephone communication or by
facsimile transmission. If mailed, such notice shall be deemed adequately
delivered when deposited in the United States mails so addressed, with postage
thereon prepaid, at least five days before such meeting. If by telegram, such
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notice shall be deemed adequately delivered when the telegram is delivered to
the telegraph company at least twenty-four hours before such meeting. If by
telephone, the notice shall be given at least twelve hours prior to the time set
for the meeting. If by facsimile transmission, the notice shall be deemed
adequately delivered if transmitted at least twenty-four hours before such
meeting. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the Board of Directors need be specified in the
notice of such meeting, except for amendments to these By-laws as provided under
Article IX hereof. A meeting of the Board of Directors may be held at any time
without notice if all the directors are present or if those not present waive
notice of the meeting in writing, either before or after such meeting.
SECTION 3.10. WAIVER OF NOTICE. A written waiver, signed by
the director, whether before or after the meeting of the Board of Directors,
shall be equivalent to the giving of such notice. Attendance by a director,
without objection to the notice, at a meeting of the Board of Directors shall
constitute waiver of notice of such meeting.
SECTION 3.11. TELEPHONE PARTICIPATION. Directors may
participate in a meeting of the Board of Directors by means of conference
telephone or similar communications equipment if all persons participating in
the meeting can hear each other. Participation in a meeting of this kind shall
constitute presence in person at the meeting.
SECTION 3.12. QUORUM AND VOTING. A majority of the whole Board
of Directors shall constitute a quorum for the transaction of business. The vote
of the majority of the directors present at a meeting at which a quorum is
present shall be the act of the Board of Directors unless the vote of a greater
number is required by statute, the Restated Certificate of Incorporation, or
these By-laws.
SECTION 3.13. ACTION WITHOUT A MEETING. Any action that may be
taken at a meeting of the directors may be taken without a meeting if a consent
in writing, setting forth the action taken, is signed by all directors.
SECTION 3.14. COMPENSATION. By resolution of the Board of
Directors, a director may be paid a fixed sum, and any expenses, for attendance
at a meeting of the Board of Directors. No such payment shall preclude a
director from receiving compensation for serving the Corporation in any other
capacity.
SECTION 3.15. NOMINATION OF DIRECTORS.
(a) Only persons who are nominated in accordance with the
following procedures shall be eligible for election as directors of the
Corporation. Nominations of persons for election to the Board of Directors may
be made at any annual meeting of stockholders, or at any special meeting of
stockholders called for the purpose of electing directors, (a) by or at the
direction of the Board of Directors (or any duly authorized committee thereof)
or (b) by any stockholder of the Corporation (i) who is a stockholder of record
on the date of the giving of the notice provided for in this section and on the
record date for the determination of stockholders entitled to vote at such
meeting and (ii) who complies with the notice procedures set forth in this
section.
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(b) In addition to any other applicable requirements, for a
nomination to be made by a stockholder, such stockholder must have given timely
notice thereof in proper written form to the Secretary of the Corporation.
(c) To be timely, a stockholder's notice to the Secretary must
be delivered to or mailed and received at the principal executive office of the
Corporation (a) in the case of an annual meeting, not less than 60 days nor more
than 90 days prior to the anniversary date of the immediately preceding annual
meeting of stockholders; provided, however, that in the event that the annual
meeting is called for a date that is not within 30 days before or after such
anniversary date, notice by the stockholder in order to be timely must be so
received not later than the close of business on the tenth day following the day
on which such notice of the date of the annual meeting was mailed or public
disclosure of the date of the annual meeting was made, whichever first occurs
and (b) 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 tenth day
following the day on which notice of the date of the special meeting was mailed
or public disclosure of the date of the special meeting was made, whichever
first occurs.
(d) To be in proper written form, a stockholder's notice to
the Secretary must set forth (a) as to each person whom the stockholder proposes
to nominate for election as a director (i) the name, age, business address and
residence address of the person, (ii) the principal occupation or employment of
the person, (iii) the class or series and number of shares of capital stock of
the Corporation which are owned beneficially or of record by the person and (iv)
any other information relating to the person that would be required to be
disclosed in a proxy statement or other filings required to be made in
connection with solicitation of proxies for election of directors pursuant to
Section 14 of the Securities Exchange Act of 1934 (the "Exchange Act"), and the
rules and regulations promulgated thereunder, and (b) as to the stockholder
giving the notice (i) the name and record address of such stockholder, (ii) the
class or series and number of shares of capital stock of the Corporation which
are owned beneficially or of record by such stockholder, (iii) a description of
all arrangements or understandings between such stockholder and each proposed
nominee and any other person or persons (including their names and addresses)
pursuant to which the nominations(s) are to be made by such stockholder, (iv) a
representation that such stockholder intends to appear in person or by proxy at
the meeting to nominate the persons named in its notice and (v) any other
information relating to such stockholder that would be required to be disclosed
in a proxy statement or other filings required to be made in connection with
solicitation of proxies for election of directors pursuant to Section 14 of the
Exchange Act and the rules and regulations promulgated thereunder. Such notice
must be accompanied by a written consent of each proposed nominee to being named
as a nominee and to serve as a director if elected.
(e) No person shall be eligible for election as a director of
the Corporation unless nominated in accordance with the procedures set forth in
this section. If the chairman of the meeting determines that a nomination was
not made in accordance with the foregoing procedures, the chairman shall declare
to the meeting that the nomination was defective and such defective nomination
shall be disregarded.
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ARTICLE IV.
BOARD COMMITTEES
SECTION 4.1. FORMATION OF COMMITTEES. The Board of Directors
by resolution may create committees, each consisting of two or more directors,
which committees shall hold office for such time and have such powers and
perform such duties as may from time to time be assigned to them by the Board of
Directors. Three committees have previously been formed: the executive
committee, the compensation committee and the audit committee.
SECTION 4.2. EXECUTIVE COMMITTEE. The executive committee
shall have all the powers of the Board of Directors in the management of the
normal and ordinary business and affairs of the Corporation at all times when
the Board of Directors is not in session. The executive committee shall have the
following specific powers to:
(a) review and approve business plans of subsidiaries and make
recommendations concerning such plans to the appropriate subsidiary board of
directors; and
(b) delegate authority to one or more persons to act on behalf
of the Corporation or its subsidiaries, whether pursuant to a power of attorney
or otherwise, and to establish policies regarding such delegations of authority.
SECTION 4.3. COMPENSATION COMMITTEE. The compensation
committee shall have the duties to recommend to the Board of Directors: (a) the
base salary or wage ranges of all employees; (b) the amounts and forms of
compensation, including fringe benefits and bonuses, as well as stock options
and incentive compensation rights that apply or may apply to employees; (c) the
adoption and implementation of any new or modified forms of compensation; (d)
the suspension, elimination or restriction of any presently existing forms of
compensation; and (e) plans concerning the orderly succession of officers and
key management personnel.
SECTION 4.4. AUDIT COMMITTEE. None of the members of the audit
committee shall be directly involved in the supervision or management of the
financial affairs of this Corporation or any of its subsidiaries.
(a) The books, records, and accounts of the Corporation may be
audited periodically by independent public accountants. In connection with the
audit process, the audit committee shall have the following duties to:
(i) make recommendations about the appointment,
retention, and termination of independent public accountants;
(ii) make recommendations about the scope of the
audit and audit procedures;
(iii) review for the Board of Directors all
recommendations made by the independent public accountants about
accounting methods and matters which are relevant to the Corporation;
and
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(iv) review with the independent public accountants
those aspects of the following matters which pertain to the
Corporation, upon completion of their audit: (a) the financial
statements and any report or opinion proposed to be rendered in
connection therewith; (b) the independent public accountants'
perceptions of the personnel responsible for the Corporation's
financial and accounting matters; (c) the cooperation which the
independent public accountants receive during the course of their
audit; (d) the extent which the resources of the Corporation were or
should be utilized to minimize the audit fee; (e) any significant
transactions which were not in the ordinary, routine, and regular
course of business of the Corporation; (f) any change in accounting
principles, policies or standards; (g) all significant adjustments
proposed by the independent public accountants; (h) general policies
and procedures relating to internal auditing and financial costs which
pertain to the Corporation; and (i) any recommendations which the
independent public accountants may have with respect to internal
financial controls, choice of accounting policies and principles or
management reporting systems.
(b) The audit committee shall meet periodically with the staff
responsible for the Corporation's financial and accounting matters to review and
discuss the scope of internal accounting procedures and controls then in effect
and the extent to which any recommendations made by the independent public
accountants or any internal auditors have been implemented.
(c) The audit committee shall direct and supervise any
investigation into any matter brought to its attention within the scope of its
duties which it believes is necessary. The audit committee may retain outside
consultants in connection with any such investigation.
(d) The audit committee shall monitor business practices of
the Corporation as set forth in the written policies of the Corporation, such as
compliance with antitrust policies and other policies, as directed by the Board
of Directors.
(e) The audit committee shall prepare and present to the Board
of Directors a report covering its activities twice yearly at regular meetings
of the Board of Directors or more often, when considered necessary, to report a
material irregularity.
SECTION 4.5. GENERAL. Any committee member may be removed by
the Board of Directors at any time without cause. The Board of Directors may
designate a chairman of a committee. The following provisions of the By-laws,
which are applicable to the Board of Directors, shall also govern each Board of
Directors committee: Section 3.4 (vacancies), Section 3.10 (waiver of notice),
Section 3.11 (telephone participation), Section 3.12 (quorum and voting), and
Section 3.13 (action without a meeting). Each committee may adopt its own rules
of procedure and such rules may govern the call, time, place, and notice of
meetings. Each committee may keep appropriate minutes of such proceedings and
shall report all significant actions at regular meetings of the Board of
Directors.
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ARTICLE V.
OFFICERS
SECTION 5.1. NUMBER. The officers of the Corporation shall
include a President and a Secretary. The Board of Directors may elect additional
officers and appoint agents as it determines necessary. Any two or more offices
may be held by the same person, except the office of President and Secretary.
The Board of Directors in its discretion may also elect a Chairman of the Board.
SECTION 5.2. ELECTION AND QUALIFICATION. The President and
Secretary shall be elected at the annual meeting of the Board of Directors.
Other officers may be elected by the Board of Directors from time to time. The
Chairman of the Board, if any, and the President shall be directors of the
Corporation.
SECTION 5.3. TERM. Each officer shall hold office until his
successor is elected and qualified or until his earlier resignation or removal.
Any officer may resign at any time upon written notice to the Corporation.
SECTION 5.4. REMOVAL. Any officer elected by the Board of
Directors may be removed by a majority of the members of the whole Board of
Directors whenever, in their judgment, the best interest of the Corporation
would be served thereby. No elected officer shall have any contractual rights
against the Corporation for compensation by virtue of such election beyond the
date of the election of his successor, his death, his resignation or his
removal, whichever event shall first occur, except as otherwise provided in an
employment contract or under an employee deferred compensation plan.
SECTION 5.5. VACANCY. Any vacancy in any office from any cause
may be filled for the unexpired portion of the term by the Board of Directors.
SECTION 5.6. CHAIRMAN OF THE BOARD. The Chairman of the Board
shall be a director and shall preside at all meetings of the Board of Directors
at which he shall be present, and shall have such power and perform such duties
as may from time to time be assigned to him by the Board of Directors.
SECTION 5.7. PRESIDENT. The President shall, when present,
preside at all meetings of the stockholders, and, in the absence of the Chairman
of the Board, at meetings of the Board of Directors. He shall have power to call
special meetings of the stockholders, of the Board of Directors or of the
Executive Committee at any time. He shall be the chief executive officer of the
Corporation, and shall have the general direction of the business, affairs and
property of the Corporation, and of its several officers and shall have and
exercise all such powers and discharge such duties as usually pertain to the
office of President.
SECTION 5.8. VICE-PRESIDENTS. The Vice-Presidents, if any, or
any of them, shall, subject to the direction of the Board of Directors, at the
request of the President or in his absence, or in case of his inability to
perform his duties from any cause, perform the duties of the President, and,
when so acting, shall have all the powers of, and be subject to all restrictions
upon, the President. The Vice-Presidents shall also perform such other duties as
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may be assigned to them by the Board of Directors, and the Board of Directors
may determine the order of priority among them.
SECTION 5.9. SECRETARY. The Secretary shall perform such
duties as are incident to the office of Secretary, or as may from time to time
be assigned to him by the Board of Directors, or as are prescribed by these
By-laws.
SECTION 5.10. TREASURER. The Treasurer shall perform such
duties and have powers as are usually incident to the office of Treasurer or
which may be assigned to him by the Board of Directors.
SECTION 5.11. COMPENSATION. The compensation of all officers
shall be fixed by the Board of Directors. An officer who is also a director may
be compensated in both capacities.
SECTION 5.12. BONDING. Any officer, agent or employee of the
Corporation, if so required by the Board of Directors, shall be bonded for the
faithful performance of his duties, with such penalties, conditions and security
as the Board of Directors may require.
ARTICLE VI.
STOCK
SECTION 6.1. STOCK CERTIFICATES. The directors shall determine
the form of certificates which represent ownership of shares of the Corporation.
Each certificate shall contain the holder's name and the number of shares
issued. Each certificate shall be signed by the President or any Vice President
and the Secretary or the Assistant Secretary; provided, however, that where such
certificates are signed by a transfer agent or an assistant transfer agent or by
a transfer clerk acting on behalf of the Corporation and a registrar, the
signature of any such President, Vice-President, Secretary or Assistant
Secretary, may be facsimile. In case any officer or officers who shall have
signed, or whose facsimile signature or signatures shall have been used on any
such certificate or certificates shall cease to be such officer or officers of
the Corporation, whether because of death, resignation or otherwise, before such
certificate or certificates shall have been delivered by the Corporation, such
certificate or certificates may nevertheless be adopted by the Corporation and
be issued and delivered as though the person or persons who signed such
certificate or certificates, or whose facsimile signature or signatures shall
have been used thereon have not ceased to be such officer or officers of the
Corporation. Each certificate shall be impressed with or bear a reproduction of
the corporate seal. Each certificate shall be consecutively numbered. The name
and address of the person to whom the shares are issued, with the number of
shares and date of issue, shall be entered in the stock ledger of the
Corporation.
SECTION 6.2. TRANSFER OF STOCK. Transfers of shares shall be
made only on the stock transfer books of the Corporation. Subject to the
provisions of the Corporation's Restated Certificate of Incorporation, on
surrender to the Corporation of a stock certificate properly endorsed by the
holder of record or accompanied by a proper evidence of
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authority to transfer, a new certificate shall be issued to the person entitled.
The old certificate shall be canceled and the transaction recorded in the stock
ledger.
SECTION 6.3. LOST CERTIFICATES. The Corporation shall issue a
new stock certificate in place of a certificate previously issued, if the
holder: (a) claims by affidavit that the certificate has been lost, destroyed,
or stolen; and (b) gives the Corporation a bond or other indemnity as the
directors determine appropriate.
SECTION 6.4. REGISTERED STOCKHOLDERS. The person in whose name
shares are registered in the Corporation's stock ledger shall be deemed by the
Corporation to be the owner of those shares for all purposes. The Corporation
shall not be required to recognize any equitable or other claim or interest in
such shares by any other person, whether or not it has actual or other notice of
such claim.
ARTICLE VII.
MISCELLANEOUS
SECTION 7.1. SEAL. The corporate seal shall contain the name
of the Corporation as well as the words "Corporate Seal" and "Delaware".
SECTION 7.2. FISCAL YEAR. The fiscal year of the Corporation
shall be determined by resolution of the Board of Directors.
SECTION 7.3. CONTRACTS, ETC. The directors shall determine by
resolution which persons shall be empowered to sign contracts, bids, proposals,
certificates and other instruments of the Corporation. Such authority may be
general or confined to specific instances.
SECTION 7.4. CHECKS, ETC. All checks or demands for money and
notes of the Corporation shall be signed by such officer or officers or such
other person or persons as the Board of Directors may from time to time
designate.
SECTION 7.5. DIVIDENDS. Dividends upon the capital stock of
the Corporation may be declared by the Board of Directors or a committee of the
Board of Directors at any regular or special meeting, pursuant to law. Dividends
may be paid in cash, in property or in shares of the capital stock.
SECTION 7.6. RESERVES. Before payment of any dividend there
may be set aside out of any funds of the Corporation available for dividends
such sum or sums as the directors from time to time, in their absolute
discretion, determine proper as a reserve fund to meet contingencies, or for
repairing or maintaining any property of the Corporation or for such other
purpose as the directors shall think conducive to the interest of the
Corporation, and the directors may abolish any such reserve in the manner in
which it was created.
SECTION 7.7. VOTING STOCK OF OTHER CORPORATIONS. Except as
otherwise ordered by the Board of Directors, the President shall have full power
on behalf of the Corporation to attend and to act and to vote at any meeting of
the stockholders of any other
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corporation of which the Corporation is a stockholder and to execute a proxy to
any other person to represent the Corporation at any such meeting.
ARTICLE VIII.
INDEMNIFICATION
SECTION 8.1. NON-DERIVATIVE SUITS. The Corporation shall
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or complete action, suit or proceeding, whether
civil, criminal, administrative, or investigative (other than an action by or in
the right of the Corporation), by reason of the fact that he 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 expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe his conduct was unlawful.
SECTION 8.2. DERIVATIVE SUITS. The Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that he 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 expenses (including attorneys' fees) actually and reasonably
incurred by him in connection with the defense or settlement of such action or
suit if he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interest of the Corporation and except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper.
SECTION 8.3. EXTENT OF INDEMNIFICATION. To the extent that a
director, officer, employee or agent of the Corporation has been successful on
the merits or otherwise in defense of any action, suit or proceeding referred to
in Section 8.1 or 8.2 above, or in defense of any claim, issue or matter
therein, he shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection therewith.
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SECTION 8.4. APPROVAL OF INDEMNIFICATION. Any indemnification
under Section 8.1 or 8.2 above (unless ordered by a court) shall be made by the
Corporation only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in the
circumstances because he has met the applicable standard of conduct set forth in
Section 8.1 or 8.2 above. Such determination shall be made (1) by the Board of
Directors by a majority vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding, (2) if such a quorum is not
obtainable, or, even if obtainable, a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion or (3) by the
affirmative vote of the holders of a majority of the outstanding shares of
Common Stock of the Corporation.
SECTION 8.5. ADVANCES. Expenses (including attorneys' fees)
incurred in defending a civil, criminal, administrative or investigative action,
suit or proceeding shall be paid by the Corporation in advance of the final
disposition of such action, suit or proceeding upon receipt of an undertaking by
or on behalf of the director, officer, employee or agent to repay such amount,
if it shall ultimately be determined that he is not entitled to be indemnified
by the Corporation as authorized in this Article VIII.
SECTION 8.6. NON-EXCLUSIVITY. The indemnification and
advancement of expenses provided by, or granted pursuant to, this Article VIII
shall not be deemed exclusive of any other rights to which any person seeking
indemnification may be entitled under any By-law, agreement, vote of
stockholders or disinterested director or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such person.
SECTION 8.7. INSURANCE. The Corporation shall have power to
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 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 the
provisions of this Section 8.7 or under the provisions of any applicable law or
regulation.
ARTICLE IX.
AMENDMENTS
SECTION 9.1. These By-laws may be repealed, altered, amended
or rescinded and new by-laws may be adopted by the majority vote of the Board of
Directors or by the affirmative vote of sixty-six and two-thirds percent
(66-2/3%) of the outstanding stock entitled to vote thereon; provided, however
that Sections 3.2, 3.3, 3.4 and 3.5 may only be repealed, altered, amended or
rescinded by the affirmative vote of eighty percent (80%) of the outstanding
stock entitled to vote thereon.
Dated: , 2000
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