Exhibit 3.2
PRINCIPAL FINANCIAL GROUP, INC.
AMENDED AND RESTATED BY-LAWS
Effective February 26, 2002
ARTICLE I
STOCKHOLDERS
Section 1.01. Annual Meetings. The annual meeting of the stockholders of
the Corporation for the election of Directors and for the transaction of such
other business as properly may come before such meeting shall be held at such
place, either within or without the State of Delaware, or, within the sole
discretion of the Board of Directors, by remote electronic communication
technologies and at such date and at such time, as may be fixed from time to
time by resolution of the Board of Directors and set forth in the notice or
waiver of notice of the meeting.
Section 1.02. Special Meetings. Special meetings of the stockholders may
be called at any time by the Chairman of the Board, Chief Executive Officer (or,
in the event of his or her absence or disability, by the President or any
Executive Vice President), or by the Board of Directors. A special meeting shall
be called by the Chairman of the Board, Chief Executive Officer (or, in the
event of his or her absence or disability, by the President or any Executive
Vice President), or by the Secretary of the Corporation pursuant to a resolution
approved by a majority of the entire Board of Directors. Such special meetings
of the stockholders shall be held at such places, within or without the State of
Delaware, or, within the sole discretion of the Board of Directors, by remote
electronic communication technologies, as shall be specified in the respective
notices or waivers of notice thereof. Any power of the stockholders of the
Corporation to call a special meeting is specifically denied.
Section 1.03. Notice of Meetings; Waiver.
(a) The Secretary of the Corporation or any Assistant Secretary shall
cause written notice of the place, if any, date and hour of each meeting of the
stockholders, and, in the case of a special meeting, the purpose or purposes for
which such meeting is called, and the means of remote communications, if any, by
which stockholders and proxyholders may be deemed to be present in person and
vote at such meeting, to be given personally by mail or by electronic
transmission, not fewer than ten (10) nor more than sixty (60) days prior to the
meeting, to each stockholder of record entitled to vote at
such meeting. If such notice is mailed, it shall be deemed to have been given
personally to a stockholder when deposited in the United States mail, postage
prepaid, directed to the stockholder at his or her address as it appears on the
record of stockholders of the Corporation, or, if a stockholder shall have filed
with the Secretary of the Corporation a written request that notices to such
stockholder be mailed to some other address, then directed to such stockholder
at such other address. Such further notice shall be given as may be required by
law.
(b) A written waiver of any notice of any annual or special meeting signed
by the person entitled thereto, or a waiver by electronic transmission by the
person entitled to notice, shall be deemed equivalent to notice. Neither the
business to be transacted at, nor the purpose of, any annual or special meeting
of the stockholders need be specified in a written waiver of notice. Attendance
of a stockholder at a meeting of stockholders shall constitute a waiver of
notice of such meeting, except when the stockholder attends a meeting for the
express purpose of objecting, at the beginning of the meeting, to the
transaction of any business on the ground that the meeting is not lawfully
called or convened.
(c) For notice given by electronic transmission to a stockholder to be
effective, such stockholder must consent to the Corporation's giving notice by
that particular form of electronic transmission. A stockholder may revoke
consent to receive notice by electronic transmission by written notice to the
Corporation. A stockholder's consent to notice by electronic transmission is
automatically revoked if the Corporation is unable to deliver two consecutive
electronic transmission notices and such inability becomes known to the
Secretary of the Corporation, any Assistant Secretary, the transfer agent or
other person responsible for giving notice.
(d) Notices are deemed given (i) if by facsimile, when faxed to a number
where the stockholder has consented to receive notice; (ii) if by electronic
mail, when mailed electronically to an electronic mail address at which the
stockholder has consented to receive such notice; (iii) if by posting on an
electronic network (such as a website or chatroom) together with a separate
notice to the stockholder of such specific posting, upon the later to occur of
(A) such posting or (B) the giving of the separate notice of such posting; or
(iv) if by any other form of electronic communication, when directed to the
stockholder in the manner consented to by the stockholder.
(e) If a stockholder meeting is to be held via electronic communications
and stockholders will take action at such meeting, the notice of such meeting
must: (i) specify the means of remote communications, if any, by which
stockholders and proxy holders may be deemed to be present and vote at such
meeting; and (ii) provide the information required to access the stockholder
list. A waiver of notice may be given by electronic transmission.
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Section 1.04. Quorum. Except as otherwise required by law or by the
Certificate of Incorporation, the presence in person or by proxy of the holders
of record of one-third of the shares entitled to vote at a meeting of
stockholders shall constitute a quorum for the transaction of business at such
meeting.
Section 1.05. Voting. If, pursuant to Section 5.05 of these By-Laws, a
record date has been fixed, every holder of record of shares entitled to vote at
a meeting of stockholders shall be entitled to one (1) vote for each share
outstanding in his or her name on the books of the Corporation at the close of
business on such record date. If no record date has been fixed, then every
holder of record of shares entitled to vote at a meeting of stockholders shall
be entitled to one (1) vote for each share of stock standing in his or her name
on the books of the Corporation at the close of business on the day next
preceding the day on which notice of the 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. Except as otherwise required by law, the Certificate of
Incorporation or these By-Laws, directors shall be elected by a plurality of the
votes of the shares present in person or represented by proxy at a meeting and
voting for nominees in the election of directors, and in all other matters, the
affirmative vote of the majority of shares present in person or represented by
proxy at a meeting and voting on the subject matter shall be the act of the
stockholders.
Section 1.06. Voting by Ballot. No vote of the stockholders on an election
of Directors need be taken by written ballot or by electronic transmission
unless otherwise required by law. Any vote not required to be taken by ballot or
by electronic transmission may be conducted in any manner approved by the Board
of Directors prior to the meeting at which such vote is taken.
Section 1.07. Adjournment. If a quorum is not present at any meeting of
the stockholders, the stockholders present in person or by proxy shall have the
power to adjourn any such meeting from time to time until a quorum is present.
Notice of any adjourned meeting of the stockholders of the Corporation need not
be given if the place, if any, date and hour thereof are announced at the
meeting at which the adjournment is taken, provided, however, that if the
adjournment is for more than thirty (30) days, or if after the adjournment a new
record date for the adjourned meeting is fixed pursuant to Section 5.05 of these
By-Laws, a notice of the adjourned meeting, conforming to the requirements of
Section 1.03 hereof, shall be given to each stockholder of record entitled to
vote at such meeting. At any adjourned meeting at which a quorum is present, any
business may be transacted that might have been transacted on the original date
of the meeting.
Section 1.08. Proxies. Any stockholder entitled to vote at any meeting of
the stockholders may authorize another person or persons to vote at any such
meeting and express such consent or dissent for him or her by proxy. A
stockholder may authorize a valid proxy by executing a written instrument signed
by such stockholder, or by causing
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his or her signature to be affixed to such writing by any reasonable means
including, but not limited to, by facsimile signature, or by transmitting or
authorizing the transmission of a telegram, cablegram or other means of
electronic transmission to the person designated as the holder of the proxy, a
proxy solicitation firm or a like authorized agent. No such proxy shall be voted
or acted upon after the expiration of three years from the date of such proxy,
unless such proxy provides for a longer period. Every proxy shall be revocable
at the pleasure of the stockholder executing it, except in those cases where
applicable law provides that a proxy shall be irrevocable. A stockholder may
revoke any proxy which is not irrevocable by attending the meeting and voting in
person or by filing with the Secretary of the Corporation either an instrument
in writing revoking the proxy or another duly executed proxy bearing a later
date. Proxies by telegram, cablegram or other electronic transmission must
either set forth or be submitted with information from which it can be
determined that the telegram, cablegram or other electronic transmission was
authorized by the stockholder. Any copy, facsimile telecommunication or other
reliable reproduction of a writing or transmission created pursuant to this
section may be substituted or used in lieu of the original writing or
transmission for any and all purposes for which the original writing or
transmission could be used, provided that such copy, facsimile telecommunication
or other reproduction shall be a complete reproduction of the entire original
writing or transmission.
Section 1.09. Organization; Procedure. At every meeting of stockholders
the presiding officer shall be the Chairman of the Board or, in the event of his
or her absence or disability, a presiding officer chosen by the Board of
Directors. The Secretary of the Corporation, or in the event of his or her
absence or disability, an Assistant Secretary, if any, or if there be no
Assistant Secretary, in the absence of the Secretary of the Corporation, an
appointee of the presiding officer, shall act as Secretary of the meeting. The
order of business and all other matters of procedure at every meeting of
stockholders may be determined by such presiding officer.
Section 1.10. Notice of Stockholder Business and Nominations.
(a) Annual Meetings of Stockholders.
(i) Nominations of persons for election to the Board of Directors of
the Corporation and the proposal of business to be considered by the
stockholders may be made at an annual meeting of stockholders (A) by or at
the direction of the Board of Directors or the Chairman of the Board, or
(B) by any stockholder of the Corporation who is entitled to vote at the
meeting, who complies with the notice procedures set forth in clauses (ii)
and (iii) of this paragraph and who was a stockholder of record at the
time such notice is delivered to the Secretary of the Corporation.
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(ii) For nominations or other business to be properly brought before
an annual meeting by a stockholder, pursuant to clause (B) of paragraph
(a)(i) of this Section 1.10, the stockholder must have given timely notice
thereof in writing or by electronic transmission to the Secretary of the
Corporation. To be timely, a stockholder's notice shall be delivered to
the Secretary of the Corporation at the principal executive offices of the
Corporation not fewer than ninety (90) days nor more than one hundred
twenty (120) days prior to the first anniversary of the preceding year's
annual meeting and in any event at least forty-five (45) days prior to the
first anniversary of the date on which the registrant first mailed its
proxy materials for the prior year's annual meeting of stockholders;
provided, that if the date of the annual meeting is advanced by more than
thirty (30) days or delayed by more than seventy (70) days from such
anniversary date, notice by the stockholder to be timely must be so
delivered not earlier than one hundred twenty (120) days prior to such
annual meeting and not later than the close of business on the later of
the ninetieth day prior to such annual meeting or the tenth day following
the day on which public announcement of the date of such meeting is first
made. In no event shall the adjournment of an annual meeting commence a
new time period for the giving of a stockholder's notice as described
above. Such stockholder's notice shall set forth (A) as to each person
whom the stockholder proposes to nominate for election or reelection as a
Director all information relating to such person that is required to be
disclosed in solicitations of proxies for election of Directors, or is
otherwise required, in each case pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and Rule
14a-11 thereunder, or any successor provisions, including such person's
written consent to being named in the proxy statement as a nominee and to
serving as a Director if elected; (B) as to any other business that the
stockholder proposes to bring before the meeting, a brief description of
the business desired to be brought before the meeting, the reasons for
conducting such business at the meeting and any material interest in such
business of such stockholder and of any beneficial owner on whose behalf
the proposal is made; and (C) as to the stockholder giving the notice and
any beneficial owner on whose behalf the nomination or proposal is made
(1) the name and address of such stockholder, as they appear on the
Corporation's books, and of such beneficial owner and (2) the class and
number of shares of the Corporation which are owned beneficially and of
record by such stockholder and such beneficial owner.
(iii) Notwithstanding anything in the second sentence of paragraph
(a)(ii) of this Section 1.10 to the contrary, in the event that the number
of Directors to be elected to the Board of Directors of the Corporation is
increased and there is no public announcement naming all of the nominees
for Director or specifying the size of the increased Board of Directors
made by the Corporation at least one hundred (100) days prior to the first
anniversary of the preceding year's annual meeting, a stockholder's notice
under this paragraph shall also be considered
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timely, but only with respect to nominees for any new positions created by
such increase, if it shall be delivered to the Secretary of the
Corporation at the principal executive offices of the Corporation not
later than the close of business on the tenth day following the day on
which such public announcement is first made by the Corporation.
(b) Special Meetings of Stockholders. Only such business as shall have
been brought before the special meeting of the stockholders pursuant to the
Corporation's notice of meeting pursuant to Section 1.03 of these By-Laws shall
be conducted at such meeting. Nominations of persons for election to the Board
of Directors may be made at a special meeting of stockholders at which Directors
are to be elected pursuant to the Corporation's notice of meeting (1) by or at
the direction of the Board of Directors or (2) by any stockholder of the
Corporation who is entitled to vote at the meeting, who complies with the notice
procedures set forth in this Section 1.10 and who is a stockholder of record at
the time such notice is delivered to the Secretary of the Corporation.
Nominations by stockholders of persons for election to the Board of Directors
may be made at such special meeting of stockholders if the stockholder's notice
as required by paragraph (a)(ii) of this Section 1.10 shall be delivered to the
Secretary of the Corporation at the principal executive offices of the
Corporation not earlier than the one hundred and twentieth (120th) day prior to
such special meeting and not later than the close of business on the later of
the ninetieth (90th) day prior to such special meeting or the tenth (10th) day
following the day on which public announcement is first made of the date of the
special meeting and of the nominees proposed by the Board of Directors to be
elected at such meeting. In no event shall the adjournment of a special meeting
commence a new time period for the giving of a stockholder's notice as described
above.
(c) General.
(i) Only persons who are nominated in accordance with the procedures
set forth in this Section 1.10 shall be eligible to serve as Directors and
only such business shall be conducted at a meeting of stockholders as
shall have been brought before the meeting in accordance with the
procedures set forth in this Section 1.10. Except as otherwise provided by
law, the Certificate of Incorporation or these By-Laws, the Chairman of
the meeting shall have the power and duty to determine whether a
nomination or any business proposed to be brought before the meeting was
made in accordance with the procedures set forth in this Section 1.10 and,
if any proposed nomination or business is not in compliance with this
Section 1.10, to declare that such defective proposal or nomination shall
be disregarded.
(ii) For purposes of this Section 1.10, "public announcement" shall
mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service or in a document
publicly filed by the
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Corporation with the Securities and Exchange Commission pursuant to
Section 13, 14, or 15(d) of the Exchange Act.
(iii) Notwithstanding the foregoing provisions of this Section 1.10,
a stockholder shall also comply with all applicable requirements of the
Exchange Act and the rules and regulations thereunder with respect to the
matters set forth in this Section 1.10. Nothing in this Section 1.10 shall
be deemed to affect any rights (A) of stockholders to request inclusion of
proposals in the Corporation's proxy statement pursuant to Rule 14a-8
under the Exchange Act, or (B) of the holders of any series of Preferred
Stock, if any, to elect Directors if so provided under any applicable
Preferred Stock Certificate of Designation (as defined in the Certificate
of Incorporation).
Section 1.11. Inspectors of Elections. Preceding any meeting of the
stockholders, the Board of Directors shall appoint one (1) or more persons to
act as Inspectors of Elections, and may designate one (1) or more alternate
inspectors. In the event no inspector or alternate is able to act, the person
presiding at the meeting shall appoint one (1) or more inspectors to act at the
meeting. Each inspector, before entering upon the discharge of the duties of an
inspector, shall take and sign an oath faithfully to execute the duties of
inspector with strict impartiality and according to the best of his or her
ability. The inspector shall:
(a) ascertain the number of shares outstanding and the voting power of
each;
(b) determine the shares represented at a meeting and the validity of
proxies and ballots;
(c) specify the information relied upon to determine the validity of
electronic transmissions in accordance with Section 1.08 hereof;
(d) count all votes and ballots;
(e) determine and retain for a reasonable period a record of the
disposition of any challenges made to any determination by the inspectors; and
(f) certify his or her determination of the number of shares represented
at the meeting, and his or her count of all votes and ballots;
(g) appoint or retain other persons or entities to assist in the
performance of the duties of inspector; and
(h) when determining the shares represented and the validity of proxies
and ballots, be limited to an examination of the proxies, any envelopes
submitted with those proxies, any information provided in accordance with
Section 1.08 of these By-Laws,
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ballots and the regular books and records of the Corporation. The inspector may
consider other reliable information for the limited purpose of reconciling
proxies and ballots submitted by or on behalf of banks, brokers or their
nominees or a similar person which represent more votes than the holder of a
proxy is authorized by the record owner to cast or more votes than the
stockholder holds of record. If the inspector considers other reliable
information as outlined in this section, the inspector, at the time of his or
her certification pursuant to paragraph (f) of this section, shall specify the
precise information considered, the person or persons from whom the information
was obtained, when this information was obtained, the means by which the
information was obtained, and the basis for the inspector's belief that such
information is accurate and reliable.
Section 1.12. Opening and Closing of Polls. The date and time for the
opening and the closing of the polls for each matter to be voted upon at a
stockholder meeting shall be announced at the meeting. The inspector shall be
prohibited from accepting any ballots, proxies or votes or any revocations
thereof or changes thereto after the closing of the polls, unless the Court of
Chancery upon application by a stockholder shall determine otherwise.
Section 1.13. No Stockholder Action by Written Consent. Effective as of
the time the Common Stock shall be registered pursuant to the provisions of the
Exchange Act, any action required or permitted to be taken by the stockholders
of the Corporation must be effected at a duly called annual or special meeting
of the stockholders of the Corporation, and the ability of the stockholders to
consent in writing to the taking of any action is specifically denied.
ARTICLE II
BOARD OF DIRECTORS
Section 2.01. General Powers. Except as may otherwise be provided by law,
the Certificate of Incorporation or these By-Laws, the property, affairs and
business of the Corporation shall be managed by or under the direction of the
Board of Directors and the Board of Directors may exercise all the powers of the
Corporation.
Section 2.02. Number of Directors. Subject to the rights of the holders of
any class or series of Preferred Stock, if any, the number of Directors shall be
fixed from time to time exclusively pursuant to a resolution adopted by a
majority of the entire Board of Directors; provided, however, that the Board of
Directors shall at no time consist of fewer than three (3) Directors.
Section 2.03. Classified Board of Directors; Election of Directors. The
Directors of the Corporation, subject to the rights of the holders of shares of
any class or series of
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Preferred Stock, shall be classified with respect to the time for which they
severally hold office, into three (3) classes, as nearly equal in number as
possible, one class ("Class I") whose initial term expires at the 2002 annual
meeting of stockholders, another class ("Class II") whose initial term expires
at the 2003 annual meeting of stockholders, and another class ("Class III")
whose initial term expires at the 2004 annual meeting of stockholders, with each
class to hold office until its successors are elected and qualified. Except as
otherwise provided in Sections 2.12 and 2.13 of these By-Laws, at each annual
meeting of stockholders of the Corporation, and subject to the rights of the
holders of shares of any class or series of Preferred Stock, the successors of
the class of Directors whose term expires at that meeting shall be elected to
hold office for a term expiring at the annual meeting of stockholders held in
the third year following the year of their election.
Section 2.04. The Chairman of the Board. The Directors shall elect from
among the members of the Board a "Chairman of the Board". The Chairman of the
Board shall be an deemed an officer of the Corporation and shall have such
duties and powers as set forth in these By-Laws or as shall otherwise be
conferred upon the Chairman of the Board from time to time by the Board of
Directors. The Chairman of the Board shall, if present, preside over all
meetings of the Stockholders and of the Board of Directors. The Board of
Directors shall by resolution establish a procedure to provide for an acting
Chairman of the Board in the event the current Chairman of the Board is unable
to serve or act in that capacity.
Section 2.05. Annual and Regular Meetings. The annual meeting of the Board
of Directors for the purpose of electing officers and for the transaction of
such other business as may come before the meeting shall be held as soon as
reasonably practicable following adjournment of the annual meeting of the
stockholders at the place of such annual meeting of the stockholders. Notice of
such annual meeting of the Board of Directors need not be given. The Board of
Directors from time to time may by resolution provide for the holding of regular
meetings and fix the place (which may be within or without the State of
Delaware) and the date and hour of such meetings. Notice of regular meetings
need not be given, provided, however, that if the Board of Directors shall fix
or change the time or place of any regular meeting, notice of such action shall
be mailed promptly, or sent by telephone, including a voice messaging system or
other system or technology designed to record and communicate messages,
telegraph, facsimile, electronic mail or other electronic means, to each
Director who shall not have been present at the meeting at which such action was
taken, addressed to him or her at his or her usual place of business, or shall
be delivered to him or her personally. Notice of such action need not be given
to any Director who attends the first regular meeting after such action is taken
without protesting the lack of notice to him or her, prior to or at the
commencement of such meeting, or to any Director who submits a signed waiver of
notice, whether before or after such meeting.
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Section 2.06. Special Meetings; Notice. Special meetings of the Board of
Directors shall be held whenever called by the Chairman of the Board, Chief
Executive Officer (or, in the event of his or her absence or disability, by the
President or any Executive Vice President), or by the Board of Directors, at
such place (within or without the State of Delaware), date and hour as may be
specified in the respective notices or waivers of notice of such meetings.
Special meetings of the Board of Directors also may be held whenever called
pursuant to a resolution approved by a majority of the entire Board of
Directors. Special meetings of the Board of Directors may be called on
twenty-four (24) hours' notice, if notice is given to each Director personally
or by telephone, including a voice messaging system, or other system or
technology designed to record and communicate messages, telegraph, facsimile,
electronic mail or other electronic means, or on five (5) days' notice, if
notice is mailed to each Director, addressed to him or her at his or her usual
place of business or to such other address as any Director may request by notice
to the Secretary. Notice of any special meeting need not be given to any
Director who attends such meeting without protesting the lack of notice to him
or her, prior to or at the commencement of such meeting, or to any Director who
submits a signed waiver of notice, whether before or after such meeting, and any
business may be transacted thereat.
Section 2.07. Quorum; Voting. At all meetings of the Board of Directors,
the presence of at least a majority of the total authorized number of Directors
shall constitute a quorum for the transaction of business. Except as otherwise
required by law, the vote of at least a majority of the Directors present at any
meeting at which a quorum is present shall be the act of the Board of Directors.
Section 2.08. Adjournment. A majority of the Directors present, whether or
not a quorum is present, may adjourn any meeting of the Board of Directors to
another time or place. No notice need be given of any adjourned meeting unless
the time and place of the adjourned meeting are not announced at the time of
adjournment, in which case notice conforming to the requirements of Section 2.05
of these By-Laws shall be given to each Director.
Section 2.09. Action Without a Meeting. Any action required or permitted
to be taken at any meeting of the Board of Directors may be taken without a
meeting if all members of the Board of Directors consent thereto in writing or
by electronic transmission, and such writing, writings or electronic
transmission or transmissions are filed with the minutes of proceedings of the
Board of Directors. Such filing shall be in paper form if the minutes are
maintained in paper form and shall be in electronic form if the minutes are
maintained in electronic form.
Section 2.10. Regulations; Manner of Acting. To the extent consistent with
applicable law, the Certificate of Incorporation and these By-Laws, the Board of
Directors may adopt by resolution such rules and regulations for the conduct of
meetings
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of the Board of Directors and for the management of the property, affairs and
business of the Corporation as the Board of Directors may deem appropriate. The
Directors shall act only as a Board of Directors and the individual Directors
shall have no power in their individual capacities unless expressly authorized
by the Board of Directors.
Section 2.11. Action by Telephonic Communications. Members of the Board of
Directors may participate in a meeting of the Board of Directors by means of
conference telephone or other communications equipment by means of which all
persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this provision shall constitute presence in person at such
meeting.
Section 2.12. Resignations. Any Director may resign at any time by
submitting an electronic transmission or by delivering a written notice of
resignation, signed by such Director, to the Chairman of the Board or the
Secretary. Unless otherwise specified therein, such resignation shall take
effect upon delivery.
Section 2.13. Removal of Directors. Subject to the rights of the holders
of any class or series of Preferred Stock, if any, to elect additional Directors
under specified circumstances, any Director may be removed at any time, but only
for cause, upon the affirmative vote of the holders of a majority of the
combined voting power of the then outstanding stock of the Corporation entitled
to vote generally in the election of Directors. Any vacancy in the Board of
Directors caused by any such removal may be filled at such meeting by the
stockholders entitled to vote for the election of the Director so removed. If
such stockholders do not fill such vacancy at such meeting, such vacancy may be
filled in the manner provided in Section 2.14 of these By-Laws.
Section 2.14. Vacancies and Newly Created Directorships. Subject to the
rights of the holders of any class or series of Preferred Stock, if any, to
elect additional Directors under specified circumstances, and except as provided
in Section 2.13, if any vacancies shall occur in the Board of Directors, by
reason of death, resignation, removal or otherwise, or if the authorized number
of Directors shall be increased, the Directors then in office shall continue to
act, and such vacancies and newly created Directorships may be filled by a
majority of the Directors then in office, although less than a quorum. Any
Director filling a vacancy shall be of the same class as that of the Director
whose death, resignation, removal or other event caused the vacancy, and any
Director filling a newly created Directorship shall be of the class specified by
the Board of Directors at the time the newly created Directorships were created.
A Director elected to fill a vacancy or a newly created Directorship shall hold
office until his or her successor has been elected and qualified or until his or
her earlier death, resignation or removal.
Section 2.15. Compensation. The amount, if any, which each Director shall
be entitled to receive as compensation for such Director's services as such
shall be fixed from time to time by resolution of the Board of Directors.
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Section 2.16. Reliance on Accounts and Reports, etc. A Director, or a
member of any committee designated by the Board of Directors shall, in the
performance of such Director's or member's duties, be fully protected in relying
in good faith upon the records of the Corporation and upon information,
opinions, reports or statements presented to the Corporation by any of the
Corporation's officers or employees, or committees designated by the Board of
Directors, or by any other person as to the matters the Director or the member
reasonably believes are within such other person's professional or expert
competence and who has been selected with reasonable care by or on behalf of the
Corporation.
ARTICLE III
EXECUTIVE COMMITTEE AND OTHER COMMITTEES
Section 3.01. Executive Committee. The Board of Directors shall appoint an
Executive Committee consisting of five (5) Directors. Members of the Executive
Committee shall be appointed by and serve at the pleasure of the Board of
Directors. The Chairman of the Board shall be a member of the Executive
Committee and shall, if present, preside at each meeting of the Executive
Committee. The Chief Executive Officer, if different than the Chairman of the
Board, shall be a member of the Executive Committee and in the event of an
absence or vacancy in the office of the Chairman of the Board, shall preside at
meetings of the Executive Committee. If the Chairman of the Board is also the
Chief Executive Officer, any other member of the Executive Committee, as
determined by the members of the Executive Committee present, shall preside at a
meeting of the Executive Committee in the absence of the Chairman of the Board.
The Secretary shall act as secretary of the Executive Committee and shall keep a
record of all proceedings of the Executive Committee. A majority of the members
of the Executive Committee shall constitute a quorum.
Section 3.02. Powers of Executive Committee. The Executive Committee shall
have and, to the extent permitted by law, may exercise all of the powers of the
Board of Directors in the management and affairs of the Corporation except when
the Board of Directors is in session.
Section 3.03. Other Committees. The Board of Directors, by resolution
adopted by the affirmative vote of a majority of Directors then in office, may
establish one (1) or more other committees of the Board of Directors, each
committee to consist of such number of Directors as from time to time may be
fixed by the Board of Directors. Any such committee shall serve at the pleasure
of the Board of Directors. Each such committee shall have the powers and duties
delegated to it by the Board of Directors, subject to the limitations set forth
in applicable Delaware law. The Board of Directors
12
may elect one or more of its members as alternate members of any such committee
who may take the place of any absent member or members at any meeting of such
committee, upon request of the Chairman of the Board or the Chairman of such
committee.
Section 3.04. Powers. Each committee, except as otherwise provided in this
section, shall have and may exercise such powers of the Board of Directors as
may be provided by resolution or resolutions of the Board of Directors. Neither
the Executive Committee nor any other committee shall have the power or
authority:
(a) to approve or adopt, or recommend to the stockholders, any
action or matter expressly required by the General Corporation Law to be
submitted to the stockholders for approval; or
(b) to adopt, amend or repeal the By-Laws of the Corporation.
Section 3.05. Proceedings. Each such committee may fix its own rules of
procedure and may meet at such place (within or without the State of Delaware),
at such time and upon such notice, if any, as it shall determine from time to
time. Each such committee shall keep minutes of its proceedings and shall report
such proceedings to the Board of Directors at the meeting of the Board of
Directors next following any such proceedings.
Section 3.06. Quorum and Manner of Acting. Except as may be otherwise
provided in the resolution creating such committee, at all meetings of any
committee, the presence of members (or alternate members) constituting a
majority of the total authorized membership of such committee shall constitute a
quorum for the transaction of business. The act of the majority of the members
present at any meeting at which a quorum is present shall be the act of such
committee. Any action required or permitted to be taken at any meeting of any
such committee may be taken without a meeting, if all members of such committee
shall consent to such action in writing or by electronic transmission and such
writing, writings or electronic transmission or transmissions are filed with the
minutes of the proceedings of the committee. Such filing shall be in paper form
if the minutes are in paper form and shall be in electronic form if the minutes
are maintained in electronic form. The members of any such committee shall act
only as a committee, and the individual members of such committee shall have no
power in their individual capacities unless expressly authorized by the Board of
Directors.
Section 3.07. Action by Telephonic Communications. Unless otherwise
provided by the Board of Directors, members of any committee may participate in
a meeting of such committee by means of conference telephone or other
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting pursuant to this
provision shall constitute presence in person at such meeting.
13
Section 3.08. Absent or Disqualified Members. In the absence or
disqualification of a member of any committee, if no alternate member is present
to act in his or her stead, the member or members thereof present at any meeting
and not disqualified from voting, whether or not he, she or they constitute a
quorum, may unanimously appoint another member of the Board of Directors to act
at the meeting in the place of any such absent or disqualified member.
Section 3.09. Resignations. Any member (and any alternate member) of any
committee may resign at any time by delivering a written notice of resignation,
signed by such member, to the Board of Directors or the Chairman of the Board.
Unless otherwise specified therein, such resignation shall take effect upon
delivery.
Section 3.10. Removal. Any member (and any alternate member) of any
committee may be removed at any time, either for or without cause, by resolution
adopted by a majority of the whole Board of Directors.
Section 3.11. Vacancies. If any vacancy shall occur in any committee, by
reason of disqualification, death, resignation, removal or otherwise, the
remaining members (and any alternate members) shall continue to act, and any
such vacancy may be filled by the Board of Directors.
ARTICLE IV
OFFICERS
Section 4.01. Chief Executive Officer. The Board of Directors shall elect
a Chief Executive Officer to serve at the pleasure of the Board of Directors who
shall (a) supervise the carrying out of policies adopted or approved by the
Board of Directors, (b) exercise a general supervision and superintendence over
all the business and affairs of the Corporation, and (c) possess such other
powers and perform such other duties as may be assigned to him or her by these
By-Laws, as may from time to time be assigned by the Board of Directors and as
may be incident to the office of Chief Executive Officer.
Section 4.02. Secretary of the Corporation. The Board of Directors shall
appoint a Secretary of the Corporation to serve at the pleasure of the Board of
Directors. The Secretary of the Corporation shall (a) keep minutes of all
meetings of the stockholders and of the Board of Directors, (b) authenticate
records of the Corporation and (c) in general, have such powers and perform such
other duties as may be assigned to him or her by these By-Laws, as may from time
to time be assigned to him or her by the Board of Directors or the Chief
Executive Officer and as may be incident to the office of Secretary of the
Corporation.
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Section 4.03. Other Officers Elected by Board of Directors. At any meeting
of the Board of Directors, the Board of Directors may elect a President, Vice
Presidents, a Chief Financial Officer, a Treasurer, Assistant Treasurers,
Assistant Secretaries, or such other officers of the Corporation as the Board of
Directors may deem necessary, to serve at the pleasure of the Board of
Directors. Other officers elected by the Board of Directors shall have such
powers and perform such duties as may be assigned to such officers by or
pursuant to authorization of the Board of Directors or by the Chief Executive
Officer.
Section 4.04. Other Officers. The Board of Directors may authorize the
Corporation to elect or appoint other officers, each of whom shall serve at the
pleasure of the Corporation. Officers elected or appointed by the Corporation
shall have such powers and perform such duties as may be assigned to them by the
Corporation.
Section 4.05. Salaries. The salaries of all officers and agents of the
Corporation shall be fixed by or pursuant to authorization of the Board of
Directors.
Section 4.06. Removal and Resignation; Vacancies. Any officer may be
removed for or without cause at any time by the Board of Directors. Any officer
may resign at any time by delivering a written notice of resignation, signed by
such officer, to the Board of Directors or the Chief Executive Officer. Unless
otherwise specified therein, such resignation shall take effect upon delivery.
Any vacancy occurring in any office of the Corporation by death, resignation,
removal or otherwise, shall be filled by or pursuant to authorization of the
Board of Directors.
Section 4.07. Authority and Duties of Officers. The officers of the
Corporation shall have such authority and shall exercise such powers and perform
such duties as may be specified in these By-Laws, except that in any event each
officer shall exercise such powers and perform such duties as may be required by
law.
ARTICLE V
CAPITAL STOCK
Section 5.01. Certificates of Stock, Uncertificated Shares. The shares of
the Corporation shall be represented by certificates, provided that the Board of
Directors may provide by resolution or resolutions that some or all of any or
all classes or series of the stock of the Corporation shall be uncertificated
shares. Any such resolution shall not apply to shares represented by a
certificate until each such certificate is surrendered to the Corporation.
Notwithstanding the adoption of such a resolution by the Board of Directors,
every holder of stock in the Corporation represented by certificates and upon
request every holder of uncertificated shares shall be entitled to have a
certificate signed by, or in the name of, the Corporation, by the Chairman of
the Board, the Chief Executive
15
Officer or the President, and by the Chief Financial Officer, the Treasurer or
an Assistant Treasurer, or the Secretary of the Corporation or an Assistant
Secretary, representing the number of shares registered in certificate form.
Such certificate shall be in such form as the Board of Directors may determine,
to the extent consistent with applicable law, the Certificate of Incorporation
and these By-Laws.
Section 5.02. Signatures; Facsimile. All signatures on the certificate
referred to in Section 5.01 of these By-Laws may be in facsimile, engraved or
printed form, to the extent permitted by law. In case any officer, transfer
agent or registrar who has signed, or whose facsimile, engraved or printed
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent or registrar before such certificate is issued, it may
be issued by the Corporation with the same effect as if he or she were such
officer, transfer agent or registrar at the date of issue.
Section 5.03. Lost, Stolen or Destroyed Certificates. The Board of
Directors may direct that a new certificate be issued in place of any
certificate theretofore issued by the Corporation alleged to have been lost,
stolen or destroyed, upon delivery to the Corporation of an affidavit of the
owner or owners of such certificate, setting forth such allegation. The
Corporation may require the owner of such lost, stolen or destroyed certificate,
or his or her legal representative, to give the Corporation a bond sufficient to
indemnify it against any claim that may be made against it on account of the
alleged loss, theft or destruction of any such certificate or the issuance of
any such new certificate.
Section 5.04. Transfer of Stock. Upon surrender to the Corporation or the
transfer agent of the Corporation of a certificate for shares, duly endorsed or
accompanied by appropriate evidence of succession, assignment or authority to
transfer, the Corporation shall issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Within a reasonable time after the transfer of uncertificated stock, the
Corporation shall send to the registered owner thereof a written notice
containing the information required to be set forth or stated on certificates
pursuant to the laws of the General Corporation Law of the State of Delaware.
Subject to the provisions of the Certificate of Incorporation and these By-Laws,
the Board of Directors may prescribe such additional rules and regulations as it
may deem appropriate relating to the issue, transfer and registration of shares
of the Corporation.
Section 5.05. Record Date. In order to determine the stockholders entitled
to notice of or to vote at any meeting of stockholders or any adjournment
thereof, the Board of Directors may fix, in advance, a record date, which record
date shall not precede the date on which the resolution fixing the record date
is adopted by the Board of Directors, and which shall not be more than sixty
(60) nor fewer than ten (10) days before the date of such meeting. 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,
16
provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
In order that the Corporation may determine the stockholders entitled to
receive payment of any dividend or other distribution or allotment of any rights
of the stockholders entitled to exercise any rights in respect of any change,
conversion or exchange of stock, or for the purpose of any other lawful action,
the Board of Directors may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted,
and which record date shall be not more than sixty (60) days prior to such
action. If no record date is fixed, the record date for determining stockholders
for any such purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating thereto.
Section 5.06. Registered Stockholders. Prior to due surrender of a
certificate for registration of transfer, the Corporation may treat the
registered owner as the person exclusively entitled to receive dividends and
other distributions, to vote, to receive notice and otherwise to exercise all
the rights and powers of the owner of the shares represented by such
certificate, and the Corporation shall not be bound to recognize any equitable
or legal claim to or interest in such shares on the part of any other person,
whether or not the Corporation shall have notice of such claim or interests.
Whenever any transfer of shares shall be made for collateral security, and not
absolutely, it shall be so expressed in the entry of the transfer if, when the
certificates are presented to the Corporation for transfer or uncertificated
shares are requested to be transferred, both the transferor and transferee
request the Corporation to do so.
Section 5.07. Transfer Agent and Registrar. The Board of Directors may
appoint one (1) or more transfer agents and one (1) or more registrars, and may
require all certificates representing shares to bear the signature of any such
transfer agents or registrars.
ARTICLE VI
INDEMNIFICATION
Section 6.01. Nature of Indemnity. 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, suit or proceeding (a "Proceeding"),
whether civil, criminal, administrative or investigative, by reason of the fact
that he or she is or was or has agreed to become a Director or officer of the
Corporation, or is or was serving or has agreed to serve at the request of the
Corporation as a Director or officer, of another corporation, partnership, joint
venture, trust or other enterprise, or by reason of any action alleged to
17
have been taken or omitted in such capacity, and may indemnify any person who
was or is a party or is threatened to be made a party to such a Proceeding by
reason of the fact that he or she is or was or has agreed to become an employee
or agent of the Corporation, or is or was serving or has agreed to serve at the
request of the Corporation as an 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 or her or on his or her behalf in
connection with such Proceeding and any appeal therefrom, if he or she acted in
good faith and in a manner he or she reasonably believed to be in or not opposed
to the best interests of the Corporation, and, with respect to any criminal
Proceeding, had no reasonable cause to believe his or her conduct was unlawful;
except that in the case of a Proceeding by or in the right of the Corporation to
procure a judgment in its favor (1) such indemnification shall be limited to
expenses (including attorneys' fees) actually and reasonably incurred by such
person in the defense or settlement of such Proceeding, and (2) 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 Delaware Court of Chancery or the court
in which such Proceeding 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 Delaware Court of Chancery or such other court shall deem
proper. Notwithstanding the foregoing, but subject to Section 6.05 of these
By-Laws, the Corporation shall not be obligated to indemnify a Director or
officer of the Corporation in respect of a Proceeding (or part thereof)
instituted by such Director or officer, unless such Proceeding (or part thereof)
has been authorized by the Board of Directors.
The termination of any 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 or she reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal Proceeding, had
reasonable cause to believe that his or her conduct was unlawful.
Section 6.02. Successful Defense. To the extent that a present or former
Director or officer of the Corporation has been successful on the merits or
otherwise in defense of any Proceeding referred to in Section 6.01 hereof or in
defense of any claim, issue or matter therein, such person shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred by
such person in connection therewith.
Section 6.03. Determination that Indemnification is Proper. Any
indemnification of a present or former Director or officer of the Corporation
under Section 6.01 hereof (unless ordered by a court) shall be made by the
Corporation unless a determination is made that indemnification of the present
or former Director or officer is not proper in the
18
circumstances because he or she has not met the applicable standard of conduct
set forth in Section 6.01 hereof. Any indemnification of a present or former
employee or agent of the Corporation under Section 6.01 hereof (unless ordered
by a court) may be made by the Corporation upon a determination that
indemnification of the present or former employee or agent is proper in the
circumstances because he or she has met the applicable standard of conduct set
forth in Section 6.01 hereof. Any such determination shall be made, with respect
to a person who is a Director or officer at the time of such determination, (1)
by a majority vote of the Directors who are not parties to such Proceeding, even
though less than a quorum, or (2) by a committee of such Directors designated by
majority vote of such Directors, even though less than a quorum, or (3) if there
are no such Directors, or if such Directors so direct, by independent legal
counsel in a written opinion, or (4) by the stockholders.
Section 6.04. Advance Payment of Expenses. Expenses (including attorneys'
fees) incurred by a Director or officer in defending any civil, criminal,
administrative or investigative Proceeding shall be paid by the Corporation in
advance of the final disposition of such Proceeding upon receipt of an
undertaking by or on behalf of the Director or officer to repay such amount if
it shall ultimately be determined that such person is not entitled to be
indemnified by the Corporation as authorized in this Article. Such expenses
(including attorneys' fees) incurred by former Directors and officers or other
employees and agents may be so paid upon such terms and conditions, if any, as
the Corporation deems appropriate. The Board of Directors may authorize the
Corporation's counsel to represent such Director, officer, employee or agent in
any Proceeding, whether or not the Corporation is a party to such Proceeding.
Section 6.05. Procedure for Indemnification of Directors and Officers. Any
indemnification of a Director or officer of the Corporation under Sections 6.01
and 6.02, or advance of costs, charges and expenses to a Director or officer
under Section 6.04 of these By-Laws, shall be made promptly, and in any event
within thirty (30) days, upon the written request of the Director or officer. If
a determination by the Corporation that the Director or officer is entitled to
indemnification pursuant to this Article VI is required, and the Corporation
fails to respond within thirty (30) days to a written request for indemnity, the
Corporation shall be deemed to have approved such request. If the Corporation
denies a written request for indemnity or advancement of expenses, in whole or
in part, or if payment in full pursuant to such request is not made within
thirty (30) days, the right to indemnification or advances as granted by this
Article VI shall be enforceable by the Director or officer in any court of
competent jurisdiction. Such person's costs and expenses incurred in connection
with successfully establishing his or her right to indemnification, in whole or
in part, in any such Proceeding shall also be indemnified by the Corporation. It
shall be a defense to any such Proceeding (other than an action brought to
enforce a claim for the advance of costs, charges and expenses under Section
6.04 of these By-Laws where the required undertaking, if any, has been received
by the Corporation) that the claimant has not met the standard of conduct set
forth in
19
Section 6.01 of these By-Laws, but the burden of proving such defense shall be
on the Corporation. Neither the failure of the Corporation (including its Board
of Directors, its independent legal counsel, and its stockholders) to have made
a determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in Section 6.01 of these By-Laws, nor
the fact that there has been an actual determination by the Corporation
(including its Board of Directors, its independent legal counsel, and its
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct.
Section 6.06. Survival; Preservation of Other Rights. The foregoing
indemnification provisions shall be deemed to be a contract between the
Corporation and each Director, officer, employee and agent who serves in any
such capacity at any time while these provisions as well as the relevant
provisions of the Delaware General Corporation Law are in effect and any repeal
or modification thereof shall not affect any right or obligation then existing
with respect to any state of facts then or previously existing or any Proceeding
previously or thereafter brought or threatened based in whole or in part upon
any such state of facts. Such a "contract right" may not be modified
retroactively without the consent of such Director, officer, employee or agent.
The indemnification provided by this Article VI shall not be deemed
exclusive of any other rights to which those indemnified may be entitled under
any by-law, agreement, vote of stockholders or disinterested Directors or
otherwise, both as to action in such person's 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 a person.
Section 6.07. Insurance. The Corporation may purchase and maintain
insurance on behalf of any person who is or was or has agreed to become a
Director, officer, employee or agent of the Corporation, or is or was serving at
the request of the Corporation as a Director or officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against any liability asserted against such person and incurred by such person
or on such person's behalf in any such capacity, or arising out of such person's
status as such, whether or not the Corporation would have the power to indemnify
him or her against such liability under the provisions of this Article VI.
Section 6.08. Severability. If this Article VI or any portion hereof shall
be invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify each Director or officer and may
indemnify each employee or agent of the Corporation as to costs, charges and
expenses (including attorneys' fees),
20
judgments, fines and amounts paid in settlement with respect to a Proceeding,
whether civil, criminal, administrative or investigative, including a Proceeding
by or in the right of the Corporation, to the fullest extent permitted by any
applicable portion of this Article VI that shall not have been invalidated and
to the fullest extent permitted by applicable law.
ARTICLE VII
OFFICES
Section 7.01. Initial Registered Office. The initial registered office of
the Corporation in the State of Delaware shall be located at Corporation Trust
Center, 1209 N. Orange Street in the City of Wilmington, County of New Castle.
Section 7.02. Other Offices. The Corporation may maintain offices or
places of business at such other locations within or without the State of
Delaware as the Board of Directors may from time to time determine or as the
business of the Corporation may require.
ARTICLE VIII
GENERAL PROVISIONS
Section 8.01. Dividends. Subject to any applicable provisions of law and
the Certificate of Incorporation, dividends upon the shares of the Corporation
may be declared by the Board of Directors at any regular or special meeting of
the Board of Directors and any such dividend may be paid in cash, property, or
shares of the Corporation's capital stock.
A member of the Board of Directors, or a member of any committee
designated by the Board of Directors shall be fully protected in relying in good
faith upon the records of the Corporation and upon such information, opinions,
reports or statements presented to the Corporation by any of its officers or
employees, or committees of the Board of Directors, or by any other person as to
matters the Director reasonably believes are within such other person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Corporation, as to the value and amount of the assets,
liabilities and/or net profits of the Corporation, or any other facts pertinent
to the existence and amount of surplus or other funds from which dividends might
properly be declared and paid.
21
Section 8.02. Reserves. There may be set aside out of any funds of the
Corporation available for dividends such sum or sums as the Board of Directors
from time to time, in its absolute discretion, thinks proper as a reserve or
reserves to meet contingencies, or for equalizing dividends, or for repairing or
maintaining any property of the Corporation or for such other purpose as the
Board of Directors shall think conducive to the interest of the Corporation, and
the Board of Directors may similarly modify or abolish any such reserve.
Section 8.03. Execution of Instruments. The Board of Directors may
authorize, or provide for the authorization of, officers, employees or agents to
enter into any contract or execute and deliver any instrument in the name and on
behalf of the Corporation. Any such authorization must be in writing or by
electronic transmission and may be general or limited to specific contracts or
instruments.
Section 8.04. Corporate Indebtedness. No loan shall be contracted on
behalf of the Corporation, and no evidence of indebtedness shall be issued in
its name, unless authorized by the Board of Directors. Such authorization may be
general or confined to specific instances. Loans so authorized may be effected
at any time for the Corporation from any bank, trust company or other
institution, or from any firm, corporation or individual. All bonds, debentures,
notes and other obligations or evidences of indebtedness of the Corporation
issued for such loans shall be made, executed and delivered as the Board of
Directors shall authorize. When so authorized by the Board of Directors, any
part of or all the properties, including contract rights, assets, business or
good will of the Corporation, whether then owned or thereafter acquired, may be
mortgaged, pledged, hypothecated or conveyed or assigned in trust as security
for the payment of such bonds, debentures, notes and other obligations or
evidences of indebtedness of the Corporation, and of the interest thereon, by
instruments executed and delivered in the name of the Corporation.
Section 8.05. Disposition of Funds. The funds of the Corporation shall be
paid out, transferred or otherwise disposed of only in such manner and under
such controls as may be authorized by resolution of the Board of Directors or as
may be authorized by such officers of the Corporation as the Board of Directors
designates.
Section 8.06. Sale, Transfer, etc. of Securities. To the extent authorized
by the Board of Directors or by the Chief Executive Officer, the President, any
Vice President, the Secretary of the Corporation, the Chief Financial Officer or
the Treasurer or any other officers designated by the Board of Directors or the
Chief Executive Officer may sell, transfer, endorse, and assign any shares of
stock, bonds or other securities owned by or held in the name of the
Corporation, and may make, execute and deliver in the name of the Corporation,
under its corporate seal, any instruments that may be appropriate to effect any
such sale, transfer, endorsement or assignment.
22
Section 8.07. Voting as Stockholder. Unless otherwise determined by
resolution of the Board of Directors, the Chief Executive Officer, the
President, any Executive Vice President or any Senior Vice President shall have
full power and authority on behalf of the Corporation to attend any meeting of
stockholders of any corporation in which the Corporation may hold stock, and to
act, vote (or execute proxies to vote) and exercise in person or by proxy all
other rights, powers and privileges incident to the ownership of such stock.
Such officers acting on behalf of the Corporation shall have full power and
authority to execute any instrument expressing consent to or dissent from any
action of any such corporation without a meeting. The Board of Directors may by
resolution from time to time confer such power and authority upon any other
person or persons.
Section 8.08. Fiscal Year. The fiscal year of the Corporation shall
commence on the first day of January of each year (except for the Corporation's
first fiscal year which shall commence on the date of incorporation) and shall
terminate in each case on December 31.
Section 8.09. Seal. The seal of the Corporation shall be in such form as
the Board of Directors may from time to time determine and shall contain the
name of the Corporation, the year of its incorporation and the words "Corporate
Seal" and "Delaware". The form of such seal shall be subject to alteration by
the Board of Directors. The seal may be used by causing it or a facsimile
thereof to be impressed, affixed or reproduced, or may be used in any other
lawful manner.
Section 8.10. Books and Records; Inspection. Except to the extent
otherwise required by law, the books and records of the Corporation shall be
kept at such place or places within or without the State of Delaware as may be
determined from time to time by the Board of Directors.
ARTICLE IX
AMENDMENT OF BY-LAWS
Section 9.01. Amendment. These By-Laws may be amended, altered or
repealed:
(a) by resolution adopted by a majority of the Board of Directors at
any special or regular meeting of the Board of Directors if, in the case
of such special meeting only, notice of such amendment, alteration or
repeal is contained in the notice or waiver of notice of such meeting; or
(b) at any regular or special meeting of the stockholders upon the
affirmative vote of the holders of three-fourths ( 3/4) or more of the
combined voting power of the outstanding shares of the Corporation
entitled to vote
23
generally in the election of Directors if, in the case of such special
meeting only, notice of such amendment, alteration or repeal is contained
in the notice or waiver of notice of such meeting.
ARTICLE X
CONSTRUCTION
Section 10.01. Construction. In the event of any conflict between the
provisions of these By-Laws as in effect from time to time and the provisions of
the Certificate of Incorporation of the Corporation as in effect from time to
time, the provisions of such Certificate of Incorporation shall be controlling.
24
AMENDED AND RESTATED BY-LAWS
OF
PRINCIPAL FINANCIAL GROUP, INC.
As Adopted on February 26, 2002
PRINCIPAL FINANCIAL GROUP, INC.
AMENDED AND RESTATED BY-LAWS
TABLE OF CONTENTS
SECTION PAGE
ARTICLE I STOCKHOLDERS
Section 1.01. Annual Meetings........................................... 1
Section 1.02. Special Meetings.......................................... 1
Section 1.03. Notice of Meetings; Waiver................................ 1
Section 1.04. Quorum.................................................... 3
Section 1.05. Voting.................................................... 3
Section 1.06. Voting by Ballot.......................................... 3
Section 1.07. Adjournment............................................... 3
Section 1.08. Proxies................................................... 3
Section 1.09. Organization; Procedure................................... 4
Section 1.10. Notice of Stockholder Business and Nominations............ 4
Section 1.11. Inspectors of Elections................................... 7
Section 1.12. Opening and Closing of Polls.............................. 8
Section 1.13. No Stockholder Action by Written Consent.................. 8
ARTICLE II BOARD OF DIRECTORS
Section 2.01. General Powers............................................ 8
Section 2.02. Number of Directors....................................... 8
Section 2.03. Classified Board of Directors; Election of Directors...... 8
Section 2.04. The Chairman of the Board................................. 9
Section 2.05. Annual and Regular Meetings............................... 9
Section 2.06. Special Meetings; Notice.................................. 10
Section 2.07. Quorum; Voting............................................ 10
Section 2.08. Adjournment............................................... 10
Section 2.09. Action Without a Meeting.................................. 10
Section 2.10. Regulations; Manner of Acting............................. 10
Section 2.11. Action by Telephonic Communications....................... 11
Section 2.12. Resignations.............................................. 11
Section 2.13. Removal of Directors...................................... 11
Section 2.14. Vacancies and Newly Created Directorships................. 11
Section 2.15. Compensation.............................................. 11
Section 2.16. Reliance on Accounts and Reports, etc..................... 12
ARTICLE III EXECUTIVE COMMITTEE AND OTHER COMMITTEES
Section 3.01. Executive Committee....................................... 12
Section 3.02. Powers of Executive Committee............................. 12
Section 3.03. Other Committees.......................................... 12
Section 3.04. Powers.................................................... 13
Section 3.05. Proceedings............................................... 13
Section 3.06. Quorum and Manner of Acting............................... 13
Section 3.07. Action by Telephonic Communications....................... 13
Section 3.08. Absent or Disqualified Members............................ 14
Section 3.09. Resignations.............................................. 14
Section 3.10. Removal................................................... 14
Section 3.11. Vacancies................................................. 14
ARTICLE IV OFFICERS
Section 4.01. Chief Executive Officer................................... 14
Section 4.02. Secretary of the Corporation.............................. 14
Section 4.03. Other Officers Elected by Board of Directors.............. 15
Section 4.04. Other Officers............................................ 15
Section 4.05. Salaries.................................................. 15
Section 4.06. Removal and Resignation; Vacancies........................ 15
Section 4.07. Authority and Duties of Officers.......................... 15
ARTICLE V CAPITAL STOCK
Section 5.01. Certificates of Stock, Uncertificated Shares.............. 15
Section 5.02. Signatures; Facsimile..................................... 16
Section 5.03. Lost, Stolen or Destroyed Certificates.................... 16
Section 5.04. Transfer of Stock......................................... 16
Section 5.05. Record Date............................................... 16
Section 5.06. Registered Stockholders................................... 17
Section 5.07. Transfer Agent and Registrar.............................. 17
ARTICLE VI INDEMNIFICATION
Section 6.01. Nature of Indemnity....................................... 17
Section 6.02. Successful Defense........................................ 18
Section 6.03. Determination that Indemnification is Proper.............. 18
Section 6.04. Advance Payment of Expenses............................... 19
Section 6.05. Procedure for Indemnification of Directors and Officers... 19
Section 6.06. Survival; Preservation of Other Rights.................... 20
Section 6.07. Insurance................................................. 20
Section 6.08. Severability.............................................. 20
ARTICLE VII OFFICES
Section 7.01. Initial Registered Office................................. 21
Section 7.02. Other Offices............................................. 21
ARTICLE VIII GENERAL PROVISIONS
Section 8.01. Dividends................................................. 21
Section 8.02. Reserves.................................................. 22
Section 8.03. Execution of Instruments.................................. 22
Section 8.04. Corporate Indebtedness.................................... 22
Section 8.05. Disposition of Funds...................................... 22
Section 8.06. Sale, Transfer, etc. of Securities........................ 22
Section 8.07. Voting as Stockholder..................................... 23
Section 8.08. Fiscal Year............................................... 23
Section 8.09. Seal...................................................... 23
Section 8.10. Books and Records; Inspection............................. 23
ARTICLE IX AMENDMENT OF BY-LAWS
Section 9.01. Amendment................................................. 23
ARTICLE X CONSTRUCTION
Section 10.01. Construction.............................................. 24