AMENDED AND RESTATED JANUARY 17, 2007
AMERICAN INTERNATIONAL GROUP, INC.
BY-LAWS
ARTICLE I
Stockholders
Section 1.1. Annual Meetings. An annual meeting of
stockholders shall be held for the election of directors at such date, time and
place either within or without the State of Delaware as may be designated by the
Board of Directors from time to time. Any other proper business may be
transacted at the annual meeting.
Section 1.2. Special Meetings. Special meetings of
stockholders for any purpose or purposes may be called at any time by the
Chairman, if any, the Chief Executive Officer, if any, the Secretary or the
Board of Directors, to be held at such date, time and place either within or
without the State of Delaware as may be stated in the notice of the meeting. A
special meeting of stockholders shall be called by the Secretary upon the
written request, stating the purpose of the meeting, of stockholders who
together own of record twenty-five (25) percent of the outstanding shares of
each class of stock entitled to vote at such meeting.
Section 1.3. Notice of Meetings. Whenever stockholders are
required or permitted to take any action at a meeting, a written notice of the
meeting shall be given which shall state the place, date and time of the
meeting, and, in the case of a special meeting, the purpose or purposes for
which the meeting is called. Unless otherwise provided by law, the written
notice of any meeting shall be given not less than ten (10) nor more than sixty
(60) days before the date of such meeting to each stockholder entitled to vote
at such meeting. If mailed, such notice shall be deemed to be given when
deposited in the United States mail, postage prepaid, directed to the
stockholder at such stockholder's address as it appears on the records of the
Corporation. No business other than that stated in the notice shall be
transacted at any special meeting without the unanimous consent of all the
stockholders entitled to vote thereat.
Section 1.4. Adjournments. Any meeting of stockholders, annual
or special, may adjourn from time to time to reconvene at the same or some other
place, and notice need not be given of any such adjourned meeting if the time
and place thereof are announced at the meeting at which the adjournment is
taken; provided, that if the adjournment is for more than thirty (30) days, or
if after the adjournment a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each stockholder of record
entitled to vote at the meeting. At the adjourned meeting
the Corporation may transact any business which might have been transacted at
the original meeting.
Section 1.5. Quorum. At each meeting of stockholders, except
where otherwise provided by law or the certificate of incorporation or these
by-laws, the holders of a majority of the outstanding shares of each class of
stock entitled to vote at the meeting, present in person or represented by
proxy, shall constitute a quorum. In the absence of a quorum, the stockholders
so present may, by majority vote, adjourn the meeting from time to time in the
manner provided by Section 1.4 of these by-laws until a quorum shall attend.
Shares of its own capital stock belonging on the record date for the meeting to
the Corporation or to another corporation, if a majority of the shares entitled
to vote in the election of directors of such other corporation is held, directly
or indirectly, by the Corporation, shall neither be entitled to vote nor be
counted for quorum purposes; provided, however, that the foregoing shall not
limit the right of the Corporation to vote stock, including but not limited to
its own stock, held by it in a fiduciary capacity.
Section 1.6. Organization. Meetings of stockholders shall be
presided over by the Chairman, or in the absence of the Chairman by the Chief
Executive Officer, or in the absence of the Chief Executive Officer by the
Chairman of the Nominating and Corporate Governance Committee, or in the absence
of the foregoing persons by a chairman designated by the Board of Directors, or
in the absence of such designation by a chairman chosen at the meeting. The
Secretary shall act as secretary of the meeting, or in the absence of the
Secretary an Assistant Secretary shall so act, or in their absence the chairman
of the meeting may appoint any person to act as secretary of the meeting.
The order of business at each such meeting shall be as
determined by the chairman of the meeting. The chairman of the meeting shall
have the right and authority to prescribe such rules, regulations and procedures
and to do all such acts and things as are necessary or desirable for the proper
conduct of the meeting, including, without limitation, the establishment of
procedures for the maintenance of order and safety, limitations on the time
allotted to questions or comments on the affairs of the Corporation,
restrictions on entry to such meeting after the time prescribed for the
commencement thereof and the opening and closing of the voting polls.
Section 1.7. Inspectors. Prior to any meeting of stockholders,
the Board of Directors or the Chief Executive Officer shall appoint one or more
inspectors to act at such meeting and make a written report thereof and may
designate one or more persons as alternate inspectors to replace any inspector
who fails to act. If no inspector or alternate is able to act at the meeting of
stockholders, the person presiding at the meeting shall appoint one or more
inspectors to act at the meeting. Each inspector, before entering upon the
discharge of his duties, shall take and sign an oath faithfully to execute the
duties of inspector with strict impartiality and according to the best of his or
her ability. The inspectors shall ascertain the number of shares outstanding and
the voting power of each, determine the shares represented at the meeting and
the validity of proxies and ballots, count all votes and ballots, determine and
retain for a reasonable period a
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record of the disposition of any challenges made to any determination by the
inspectors and certify their determination of the number of shares represented
at the meeting and their count of all votes and ballots. The inspectors may
appoint or retain other persons to assist them in the performance of their
duties. The date and time of the opening and closing of the polls for each
matter upon which the stockholders will vote at a meeting shall be announced at
the meeting. No ballot, proxy or vote, nor any revocation thereof or change
thereto, shall be accepted by the inspectors after the closing of the polls. In
determining the validity and counting of proxies and ballots, the inspectors
shall be limited to an examination of the proxies, any envelopes submitted
therewith, any information provided by a stockholder who submits a proxy by
telegram, cablegram or other electronic transmission from which it can be
determined that the proxy was authorized by the stockholder, ballots and the
regular books and records of the Corporation, and they may also consider other
reliable information for the limited purpose of reconciling proxies and ballots
submitted by or on behalf of banks, brokers, their nominees or similar persons
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
inspectors consider other reliable information for such purpose, they shall, at
the time they make their certification, specify the precise information
considered by them, including the person or persons from whom they obtained the
information, when the information was obtained, the means by which the
information was obtained and the basis for the inspectors' belief that such
information is accurate and reliable.
Section 1.8. Classes or Series of Stock; Voting Proxies. For
purposes of this Article I, two or more classes or series of stock shall be
considered a single class if and to the extent that the holders thereof are
entitled to vote together as a single class at the meeting. Unless otherwise
provided in the certificate of incorporation, each stockholder entitled to vote
at any meeting of stockholders shall be entitled to one vote for each share of
stock held by such stockholder which has voting power upon the matter in
question. Each stockholder entitled to vote at a meeting of stockholders or to
express consent or dissent to corporate action in writing without a meeting may
authorize another person or persons to act for such stockholder by proxy, but no
such proxy shall be voted or acted upon after three years from its date, unless
the proxy provides for a longer period. A duly executed proxy shall be
irrevocable if it states that it is irrevocable and if and only as long as, it
is coupled with an interest sufficient in law to support an irrevocable power. A
stockholder may revoke any proxy which is not irrevocable by attending the
meeting and voting in person or by filing an instrument in writing revoking the
proxy or another duly executed proxy bearing a later date with the Secretary of
the Corporation. Voting at meetings of stockholders need not be by written
ballot and need not be conducted by inspectors unless the holders of a majority
of the outstanding shares of all classes of stock entitled to vote thereon
present in person or by proxy at such meeting shall so determine. At all
meetings of stockholders for the election of directors a plurality of the votes
cast shall be sufficient to elect. With respect to other matters, unless
otherwise provided by law or by the certificate of incorporation or these
by-laws, the affirmative vote of the holders of a majority of the shares of all
classes of stock present in person or represented by proxy at the meeting and
entitled to vote on the subject matter
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shall be the act of the stockholders, provided that (except as otherwise
required by law or by the certificate of incorporation) the Board of Directors
may require in the notice of meeting a larger vote upon any such matter. Only
votes cast "for" or "against" a matter shall be considered affirmative votes;
abstentions, broker non-votes and withheld votes shall not be treated as
affirmative votes and shall not be taken into account in determining whether a
matter is approved. Where a separate vote by class is required, the affirmative
vote of the holders of a majority of the shares of each class present in person
or represented by proxy at the meeting shall be the act of such class, except as
otherwise provided by law or by the certificate of incorporation or these
by-laws.
Section 1.9. Fixing Date for Determination of Stockholders of
Record. In order that the Corporation may determine the stockholders entitled to
notice of or to vote at any meeting of stockholders or any adjournment thereof,
the Board of Directors may fix, a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted by
the Board of Directors, and which shall not be more than sixty (60) nor less
than ten (10) days before the date of such meeting. If no record date is fixed
by the Board of Directors the record date for determining stockholders entitled
to notice of or to vote at a meeting of stockholders shall be at the close of
business on the day next preceding the day on which notice is given, or, if
notice is waived, at the close of business on the day next preceding the day on
which the meeting is held. A determination of stockholders of record entitled to
notice of or to vote at a meeting of stockholders shall apply to any adjournment
of the meeting; provided, however, that the Board of Directors may fix a new
record date for the adjourned meeting.
In order that the Corporation may determine the stockholders
entitled to consent to corporate action in writing without a meeting, the Board
of Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors, and which date shall not be more than ten (10) days after the date
upon which the resolution fixing the record date is adopted by the Board of
Directors. If no record date has been fixed by the Board of Directors, the
record date for determining stockholders entitled to consent to corporate action
in writing without a meeting, when no prior action by the Board of Directors is
required by law, shall be the first date on which a signed written consent
setting forth the action taken or proposed to be taken is delivered to the
Corporation by delivery to its registered office in the State of Delaware, its
principal place of business, or an officer or agent of the Corporation having
custody of the book in which proceedings of meetings of stockholders are
recorded. Delivery made to the Corporation's registered office shall be by hand
or by certified or registered mail, return receipt requested. If no record date
has been fixed by the Board of Directors and prior action by the Board of
Directors is required by law, the record date for determining stockholders
entitled to consent to corporate action in writing without a meeting shall be at
the close of business on the day on which the Board of Directors adopts the
resolution taking such prior action.
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In order that the Corporation may determine the stockholders
entitled to receive payment of any dividend or other distribution or allotment
of any rights or the stockholders entitled to exercise any rights in respect of
any change, conversion or exchange of stock, or for the purpose of any other
lawful action, the Board of Directors may fix a record date, which record date
shall not precede the date upon which the resolution fixing the record date is
adopted, and which record date shall be not more than sixty (60) days prior to
such action. If no record date is fixed, the record date for determining
stockholders for any such purpose shall be at the close of business on the day
on which the Board of Directors adopts the resolution relating thereto.
Section 1.10. List of Stockholders Entitled to Vote. The
Secretary shall prepare and make, at least ten (10) days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten (10) days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof and may be inspected by any stockholder who is
present.
Section 1.11. Consent of Stockholders in Lieu of Meeting.
Unless otherwise provided in the certificate of incorporation or these by-laws,
any action required by law to be taken at any annual or special meeting of
stockholders of the Corporation, or any action which may be taken at any annual
or special meeting of such stockholders, may be taken without a meeting, without
prior notice and without a vote, if a consent or consents in writing, setting
forth the action so taken, shall be signed by the holders of outstanding stock
having not less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all shares entitled to vote
thereon were present and voted and shall be delivered to the Corporation by
delivery to (a) its registered office in the State of Delaware by hand or by
certified mail or registered mail, return receipt requested, (b) its principal
place of business, or (c) an officer or agent of the Corporation having custody
of the book in which proceedings of meetings of stockholders are recorded. Every
written consent shall bear the date of signature of each stockholder who signs
the consent and no written consent shall be effective to take the corporate
action referred to therein unless, within sixty (60) days of the earliest dated
consent delivered in the manner required by this Section 1.11 to the
Corporation, written consents signed by a sufficient number of holders to take
action are delivered to the Corporation by delivery to (a) its registered office
in the State of Delaware by hand or by certified or registered mail, return
receipt requested, (b) its principal place of business, or (c) an officer or
agent of the Corporation having custody of the book in which proceedings of
meetings of stockholders are recorded. Prompt notice of the taking of the
corporate action without a meeting by less than unanimous written consent shall
be given to those stockholders who have not consented in writing and who,
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if the action had been taken at a meeting, would have been entitled to notice of
the meeting if the record date for such meeting had been the date that written
consents signed by a sufficient number of stockholders to take the action were
delivered to the Corporation as provided in this Section 1.11.
Section 1.12. Advance Notice of Stockholder Nominees for
Director and Other Stockholder Proposals. (a) The matters to be considered and
brought before any annual or special meeting of stockholders of the Corporation
shall be limited to only such matters, including the nomination and election of
directors, as shall be brought properly before such meeting in compliance with
the procedures set forth in this Section 1.12.
For any matter to be properly brought before any annual
meeting of stockholders, the matter must be (i) specified in the notice of
annual meeting given by or at the direction of the Board of Directors, (ii)
otherwise brought before the annual meeting by or at the direction of the Board
of Directors or (iii) brought before the annual meeting in the manner specified
in this Section 1.12(a), (x) by a stockholder that holds of record stock of the
Corporation entitled to vote at the annual meeting on such matter (including any
election of a director) or (y) by a person (a "Nominee Holder") that holds such
stock through a nominee or "street name" holder of record of such stock and can
demonstrate to the Corporation such indirect ownership of, and such Nominee
Holder's entitlement to vote, such stock on such matter. In addition to any
other requirements under applicable law, the certificate of incorporation and
these by-laws, persons nominated by stockholders for election as directors of
the Corporation and any other proposals by stockholders shall be properly
brought before an annual meeting of stockholders only if notice of any such
matter to be presented by a stockholder at such meeting (a "Stockholder Notice")
shall be delivered to the Secretary at the principal executive office of the
Corporation not less than ninety (90) nor more than one hundred and twenty (120)
days prior to the first anniversary date of the annual meeting for the preceding
year; provided, however, that if and only if the annual meeting is not scheduled
to be held within a period that commences thirty (30) days before and ends
thirty (30) days after such anniversary date (an annual meeting date outside
such period being referred to herein as an "Other Meeting Date"), such
Stockholder Notice shall be given in the manner provided herein by the later of
(i) the close of business on the date ninety (90) days prior to such Other
Meeting Date or (ii) the close of business on the tenth (10) day following the
date on which such Other Meeting Date is first publicly announced or disclosed.
Any stockholder desiring to nominate any person or persons (as the case may be)
for election as a director or directors of the Corporation at an annual meeting
of stockholders shall deliver, as part of such Stockholder Notice, a statement
in writing setting forth the name of the person or persons to be nominated, the
number and class of all shares of each class of stock of the Corporation owned
of record and beneficially by each such person, as reported to such stockholder
by such person, the information regarding each such person required by
paragraphs (a), (e) and (f) of Item 401 of Regulation S-K adopted by the
Securities and Exchange Commission, each such person's signed consent to serve
as a director of the Corporation if elected, such stockholder's name and
address, the number and class of all shares of each class of stock of the
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Corporation owned of record and beneficially by such stockholder and, in the
case of a Nominee Holder, evidence establishing such Nominee Holder's indirect
ownership of stock and entitlement to vote such stock for the election of
directors at the annual meeting. The Corporation may require any proposed
nominee to furnish such other information as it may reasonably require to
determine whether the nominee would be considered "independent" under the
various rules and standards applicable to the Corporation. Any stockholder who
gives a Stockholder Notice of any matter (other than a nomination for director)
proposed to be brought before an annual meeting of stockholders shall deliver,
as part of such Stockholder Notice, the text of the proposal to be presented and
a brief written statement of the reasons why such stockholder favors the
proposal and setting forth such stockholder's name and address, the number and
class of all shares of each class of stock of the Corporation owned of record
and beneficially by such stockholder, any material interest of such stockholder
in the matter proposed (other than as a stockholder), if applicable, and, in the
case of a Nominee Holder, evidence establishing such Nominee Holder's indirect
ownership of stock and entitlement to vote such stock on the matter proposed at
the annual meeting. As used in these by-laws, shares "beneficially owned" shall
mean all shares which such person is deemed to beneficially own pursuant to
Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934 (the "Exchange
Act"). If a stockholder is entitled to vote only for a specific class or
category of directors at a meeting (annual or special), such stockholder's right
to nominate one or more individuals for election as a director at the meeting
shall be limited to such class or category of directors. Notwithstanding any
provision of this Section 1.12 to the contrary, in the event that the number of
directors to be elected to the Board of Directors of the Corporation at the next
annual meeting of stockholders is increased by virtue of an increase in the size
of the Board of Directors and either all of the nominees for director at the
next annual meeting of stockholders or the size of the increased Board of
Directors is not publicly announced or disclosed by the Corporation at least one
hundred (100) days prior to the first anniversary of the preceding year's annual
meeting, a Stockholder Notice shall also be considered timely hereunder, but
only with respect to nominees to stand for election at the next annual meeting
as the result of any new positions created by such increase, if it shall be
delivered to the Secretary at the principal executive office of the Corporation
not later than the close of business on the tenth (10) day following the first
day on which all such nominees or the size of the increased Board of Directors
shall have been publicly announced or disclosed.
(b) Except as provided in the immediately following sentence,
no matter shall be properly brought before a special meeting of stockholders
unless such matter shall have been brought before the meeting pursuant to the
Corporation's notice of such meeting. In the event the Corporation calls a
special meeting of stockholders for the purpose of electing one or more
directors to the Board of Directors, any stockholder entitled to vote for the
election of such director(s) at such meeting may nominate a person or persons
(as the case may be) for election to such position(s) as are specified in the
Corporation's notice of such meeting, but only if the Stockholder Notice
required by Section 1.11(b) hereof shall be delivered to the Secretary at the
principal executive office of the Corporation not later than the close of
business on the tenth (10) day following the
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first day on which the date of the special meeting and either the names of all
nominees proposed by the Board of Directors to be elected at such meeting or the
number of directors to be elected shall have been publicly announced or
disclosed.
(c) For purposes of this Section 1.12, a matter shall be
deemed to have been "publicly announced or disclosed" if such matter is
disclosed in a press release reported by the Dow Jones News Service, the
Associated Press or a comparable national news service or in a document publicly
filed by the Corporation with the Securities and Exchange Commission.
(d) In no event shall the adjournment of an annual meeting or
a special meeting, or any announcement thereof, commence a new period for the
giving of notice as provided in this Section 1.12. This Section 1.12 shall not
apply to (i) any stockholder proposal made pursuant to Rule 14a-8 under the
Exchange Act or (ii) any nomination of a director in an election in which only
the holders of one or more series of Preferred Stock of the Corporation issued
pursuant to Article FOUR of the certificate of incorporation are entitled to
vote (unless otherwise provided in the terms of such stock).
(e) The chairman of any meeting of stockholders, in addition
to making any other determinations that may be appropriate to the conduct of the
meeting, shall have the power and duty to determine whether notice of nominees
and other matters proposed to be brought before a meeting has been duly given in
the manner provided in this Section 1.12 and, if not so given, shall direct and
declare at the meeting that such nominees and other matters shall not be
considered.
Section 1.13. Approval of Stockholder Proposals. Except as
otherwise required by law, any matter (other than a nomination for director)
that has been properly brought before an annual or special meeting of
stockholders of the Corporation by a stockholder (including a Nominee Holder) in
compliance with the procedures set forth in Section 1.12 and any stockholder
proposal pursuant to Rule 14a-8 shall require for approval thereof the
affirmative vote of the holders of not less than a majority of all outstanding
shares of Common Stock of the Corporation and all other outstanding shares of
stock of the Corporation entitled to vote on such matter, with such outstanding
shares of Common Stock and other stock considered for this purpose as a single
class. Any vote of stockholders required by this Section 1.13 shall be in
addition to any other vote of stockholders of the Corporation that may be
required by law, the certificate of incorporation or these by-laws, by any
agreement with a national securities exchange or otherwise.
Section 1.14. Reimbursement. If a stockholder (including a
Nominee Holder) has brought a matter before an annual or special meeting of
stockholders of the Corporation and the matter is included in the Corporation's
proxy materials pursuant to Rule 14a-8 under the Exchange Act and is approved by
the affirmative vote of not less than a majority of all outstanding shares of
Common Stock of the Corporation and all other outstanding shares of stock of the
Corporation entitled to vote on such matter (with
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such outstanding shares of Common Stock and other stock considered for this
purpose as a single class), the Corporation shall reimburse the stockholder for
all reasonable out-of-pocket costs and expenses incurred in bringing the matter
before the meeting of stockholders, including reasonable out-of-pocket costs and
expenses incurred in opposing any efforts by the Corporation to (i) exclude the
matter from the Corporation's proxy materials and (ii) solicit votes in
opposition; provided, however, that such reimbursement shall not exceed the
amount spent by the Corporation in efforts to exclude the matter from the
Corporation's proxy materials and solicit votes in opposition.
ARTICLE II
Board of Directors
Section 2.1. Powers; Number; Qualifications. The business and
affairs of the Corporation shall be managed by or under the direction of the
Board of Directors, except as may be otherwise provided by law or in the
certificate of incorporation. The Board shall consist of not less than seven nor
more than twenty-one (21) members, the number thereof to be determined from time
to time by the Board; provided, however, that in determining the number of
directors no account shall be taken of any non-voting director, including any
advisory or honorary director, that may be elected from time to time by a
majority of the Board of Directors. The number of directors may be increased by
amendment of these by-laws by the affirmative vote of a majority of the
directors then in office, although less than a quorum, or by the affirmative
vote of the holders of a majority of the outstanding shares of all classes of
stock entitled to vote thereon, and by like vote the additional directors may be
elected to hold office until the next succeeding annual meeting of stockholders
and until their respective successors are elected and qualified or until their
respective earlier resignations or removals. Directors need not be stockholders.
Section 2.2. Election; Term of Office; Resignation; Removal;
Vacancies. Each director shall hold office until the annual meeting of
stockholders next succeeding his or her election and until his or her successor
is elected and qualified or until his or her earlier resignation or removal. Any
director may resign at any time upon written notice to the Board of Directors or
to the Chairman or the Secretary of the Corporation. Such resignation shall take
effect at the time specified therein, and no acceptance of such resignation
shall be necessary to make it effective. Any director or the entire Board of
Directors may be removed, with or without cause, by the affirmative vote of
holders of a majority of the shares then entitled to vote at an election of
directors; and any vacancy so created may be filled by the affirmative vote of
holders of a majority of the shares then entitled to vote at an election of
directors. Whenever the holders of any class or series of stock are entitled to
elect one or more directors by the provisions of the certificate of
incorporation, the provisions of the preceding sentence shall apply, in respect
to the removal without cause of a director or directors so elected, to the vote
of the holders of the outstanding shares of that class or series and not to the
vote of the outstanding shares as a whole. Unless otherwise provided in the
certificate of
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incorporation or these by-laws, vacancies (other than any vacancy created by
removal of a director by shareholder vote) and newly created directorships
resulting from any increase in the authorized number of directors elected by all
of the stockholders having the right to vote as a single class or from any other
cause may be filled by a majority of the directors then in office, although less
than a quorum, or by the sole remaining director. Whenever the holders of any
class or classes of stock or series thereof are entitled to elect one or more
directors by the provisions of the certificate of incorporation, vacancies and
newly created directorships of such class or classes or series may, unless
otherwise provided in the certificate of incorporation, be filled by a majority
of the directors elected by such class or classes or series thereof then in
office, or by the sole remaining director so elected.
Section 2.3. Regular Meetings. Regular meetings of the Board
of Directors may be held at such places within or without the State of Delaware
and at such times as the Board may from time to time determine, and if so
determined notice thereof need not be given.
Section 2.4. Special Meetings. Special meetings of the Board
of Directors may be held at any time or place within or without the State of
Delaware whenever called by the Chairman or by the Chief Executive Officer or on
the written request of any two directors. Reasonable notice thereof, which may
be by telephone or email, shall be given by the person calling the meeting.
Section 2.5. Participation in Meetings by Conference Telephone
Permitted. Unless otherwise restricted by the certificate of incorporation or
these by-laws, members of the Board of Directors, or any committee designated by
the Board, may participate in a meeting of the Board or of such committee, as
the case may be, by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in a meeting pursuant to this Section 2.5 shall
constitute presence in person at such meeting.
Section 2.6. Quorum; Vote Required for Action. At all meetings
of the Board of Directors a majority of the entire Board shall constitute a
quorum for the transaction of business. The vote of a majority of the directors
present at a meeting at which a quorum is present shall be the act of the Board
unless the certificate of incorporation or these by-laws shall require a vote of
a greater number. In case at any meeting of the Board a quorum shall not be
present, a majority of the members of the Board present may adjourn the meeting
from time to time until a quorum shall attend, and notice need not be given of
any such adjourned meeting if the time and place thereof are announced at the
meeting at which adjournment is taken.
Section 2.7. Chairman. The Board of Directors shall annually
select one of its members who is independent under the New York Stock Exchange
listing standards to be Chairman and shall fill any vacancy in the position of
Chairman at such time and in such manner as the Board of Directors shall
determine.
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Section 2.8. Organization. Meetings of the Board of Directors
shall be presided over by the Chairman or, in the absence of the Chairman by the
Chairman of the Nominating and Corporate Governance Committee or in their
absence by a chairman chosen at the meeting. The Secretary, or in the absence of
the Secretary an Assistant Secretary, shall act as secretary of the meeting, but
in the absence of the Secretary and any Assistant Secretary the chairman of the
meeting may appoint any person to act as secretary of the meeting.
Section 2.9. Action by Directors Without a Meeting. Unless
otherwise restricted by the certificate of incorporation or these by-laws, any
action required or permitted to be taken at any meeting of the Board of
Directors, or of any committee thereof, may be taken without a meeting if all
members of the Board or of such committee, as the case may be, consent thereto
in writing, and the writing or writings are filed with the minutes of
proceedings of the Board or committee.
Section 2.10. Compensation of Directors. The Board of
Directors shall have the authority to fix the compensation of directors.
ARTICLE III
Committees
Section 3.1. Committees. The Board of Directors may, by
resolution passed by a majority of the whole Board, designate one or more
committees, each committee to consist of two or more of the directors of the
Corporation. The Board may designate one or more directors as alternate members
of any committee, who may replace any absent or disqualified member at any
meeting of the committee. In the absence or disqualification of a member of a
committee, the member or members thereof present at any meeting and not
disqualified from voting, whether or not such member or members constitute a
quorum, may unanimously appoint another member of the Board to act at the
meeting in place of any such absent or disqualified member. Any such committee,
to the extent permitted by applicable law and provided in the resolution of the
Board or in these by-laws, shall have and may exercise all the powers and
authority of the Board in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be affixed to all
papers which may require it. The standing committees of the Board of Directors
shall be the Audit Committee, the Nominating and Corporate Governance Committee,
the Compensation Committee, such additional committees as may be required by the
New York Stock Exchange listing standards or other applicable law and such
additional committees as the Board of Directors may designate pursuant to this
Section 3.1, in each case with such name or names as may be stated in these
by-laws or as may be determined from time to time by resolution adopted by the
Board of Directors. The committees shall keep regular minutes of their
proceedings and report the same to the Board of Directors when required.
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The Executive Committee, if one shall be designated, to the
extent permitted by applicable law shall have and may exercise all the powers
and authority of the Board of Directors in the management of the business and
affairs of the Corporation, and may authorize the seal of the Corporation to be
affixed to all papers which may require it. Except as otherwise provided from
time to time in resolutions passed by a majority of the whole Board of
Directors, the powers and authority of the Executive Committee shall include the
power and authority to declare a dividend on stock, to authorize the issuance of
stock and to adopt a certificate of ownership and merger pursuant to Section 253
of the Delaware General Corporation Law. Except as otherwise provided from time
to time in resolutions passed by a majority of the whole Board of Directors, the
power and authority of the Executive Committee shall not include the power or
authority to nominate persons to serve as directors or to fill vacancies or
newly created directorships, which power and authority shall be vested in the
Board of Directors.
Section 3.2. Committee Rules. Unless the Board of Directors
otherwise provides, each committee designated by the Board may adopt, amend and
repeal rules for the conduct of its business. In the absence of a provision by
the Board or a provision in the rules of such committee to the contrary, a
majority of the members of such committee shall constitute a quorum for the
transaction of business, the vote of a majority of the members present at a
meeting at the time of such vote if a quorum is then present shall be the act of
such committee, and in other respects each committee shall conduct its business
in the same manner as the Board conducts its business pursuant to Article II of
these by-laws.
ARTICLE IV
Officers
Section 4.1. Officers; Election. As soon as practicable after
the annual meeting of stockholders in each year, the Board of Directors shall
elect a Chief Executive Officer and a Secretary, and it may, if it so
determines, elect one or more Vice Chairmen. The Board may also elect a
President, one or more Vice Presidents, one or more Assistant Vice Presidents,
one or more Assistant Secretaries, a Treasurer and one or more Assistant
Treasurers and such other officers as the Board may deem desirable or
appropriate and may give any of them such further designations or alternate
titles as it considers desirable. Any number of offices may be held by the same
person.
Section 4.2. Term of Office; Resignation; Removal; Vacancies.
Except as otherwise provided in the resolution of the Board of Directors
electing any officer each officer shall hold office until the first meeting of
the Board after the annual meeting of stockholders next succeeding his or her
election, and until his or her successor is elected and qualified or until his
or her earlier resignation or removal. Any officer may resign at any time upon
written notice to the Board or to the Chairman or to the Chief Executive Officer
or to the Secretary of the Corporation. Such resignation shall take effect at
the
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time specified therein, and no acceptance of such resignation shall be necessary
to make it effective. The Board may remove any officer with or without cause at
any time. Any such removal shall be without prejudice to the contractual rights
of such officer, if any, with the Corporation, but the election of an officer
shall not of itself create contractual rights. Any vacancy occurring in any
office of the Corporation by death, resignation, removal or otherwise may be
filled for the unexpired portion of the term by the Board at any regular or
special meeting.
Section 4.3. Chief Executive Officer. The Chief Executive
Officer shall have general charge and supervision of the business of the
Corporation and shall perform all duties incident to the office of a Chief
Executive Officer of a corporation and such other duties as may, from time to
time, be assigned to him or her by the Board.
Section 4.4. Vice Chairman. Any Vice Chairman shall have and
may exercise such powers as may, from time to time, be assigned to him or her by
the Board or the Chief Executive Officer.
Section 4.5. Vice Presidents. Vice Presidents include all
Executive Vice Presidents and Senior Vice Presidents. The Vice President or Vice
Presidents shall have such powers and shall perform such other duties as may,
from time to time, be assigned to him or her or them by the Board or the Chief
Executive Officer or as may be provided by law.
Section 4.6. Secretary. The Secretary shall have the duty to
record or cause to be recorded the proceedings of the meetings of the
stockholders, the Board of Directors and any committees in a book to be kept for
that purpose, shall see that all notices are duly given in accordance with the
provisions of these by-laws or as required by law, shall be custodian of the
records of the Corporation, may affix the corporate seal to any document the
execution of which, on behalf of the Corporation, is duly authorized, and when
so affixed may attest the same, and, in general, shall perform all duties
incident to the office of secretary of a corporation and such other duties as
may, from time to time, be assigned to him or her by the Board or the Chief
Executive Officer or as may be provided by law.
Section 4.7. Treasurer. The Treasurer shall have charge of and
be responsible for all funds, securities, receipts and disbursements of the
Corporation and shall deposit or cause to be deposited, in the name of the
Corporation, all moneys or other valuable effects in such banks, trust companies
or other depositories as shall, from time to time, be selected by or under
authority of the Board of Directors. If required by the Board, the Treasurer
shall give a bond for the faithful discharge of his or her duties, with such
surety or sureties as the Board may determine. The Treasurer shall keep or cause
to be kept full and accurate records of all receipts and disbursements in books
of the Corporation, shall render to the Chief Executive Officer and to the
Board, whenever requested, an account of the financial condition of the
Corporation, and, in general, shall perform all the duties incident to the
office of treasurer of a corporation and such other
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duties as may, from time to time, be assigned to him or her by the Board or the
Chief Executive Officer or as may be provided by law.
Section 4.8. Other Officers. The other officers, if any, of
the Corporation, including any Assistant Vice Presidents, Assistant Treasurers
and Assistant Secretaries, shall have such powers and duties in the management
of the Corporation as shall be stated in a resolution of the Board of Directors
which is not inconsistent with these by-laws and, to the extent not so stated,
as generally pertain to their respective offices, subject to the control of the
Board. The Board may require any officer, agent or employee to give security for
the faithful performance of his or her duties.
ARTICLE V
Stock
Section 5.1. Certificates. Except as otherwise determined by
the Board of Directors, every holder of stock in the Corporation shall be
entitled to have a certificate signed by or in the name of the Corporation by
the Chairman or a Vice Chairman, if any, or the Chief Executive Officer, if any,
or a Vice President and by the Treasurer or an Assistant Treasurer, or the
Secretary or an Assistant Secretary, of the Corporation, certifying the number
of shares owned by such holder in the Corporation. If such certificate is
manually signed by one officer or manually countersigned by a transfer agent or
by a registrar, any other signature on the certificate may be a facsimile. In
case any officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent or registrar before such certificate is issued, it may
be issued by the Corporation with the same effect as if such person were such
officer, transfer agent or registrar at the date of issue.
Section 5.2. Lost, Stolen or Destroyed Stock Certificates;
Issuance of New Certificates. The Corporation may issue a new certificate of
stock in the place of any certificate theretofore issued by it, alleged to have
been lost, stolen or destroyed, and the Corporation may require the owner of the
lost, stolen or destroyed certificate, or such owner's 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 such new certificate.
ARTICLE VI
Miscellaneous
Section 6.1. Fiscal Year. The fiscal year of the Corporation
shall be the calendar year.
Section 6.2. Seal. The Corporation may have a corporate seal
which shall have the name of the Corporation inscribed thereon and shall be in
such form as
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may be approved from time to time by the Board of Directors. The corporate seal
may be used by causing it or a facsimile thereof to be impressed or affixed or
in any other manner reproduced.
Section 6.3. Waiver of Notice of Meetings of Stockholders,
Directors and Committees. Whenever notice is required to be given by law or
under any provision of the certificate of incorporation or these by-laws, a
written waiver thereof, signed by the person entitled to notice, whether before
or after the time stated therein, shall be deemed equivalent to notice.
Attendance of a person at a meeting shall constitute a waiver of notice of such
meeting, except when the person attends a meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened. Neither the business to
be transacted at, nor the purpose of, any regular or special meeting of the
stockholders, directors or members of a committee of directors need be specified
in any written waiver of notice unless so required by the certificate of
incorporation or these by-laws.
Section 6.4. Indemnification of Directors, Officers and
Employees.
1. Indemnification -- General.
(a) Except as provided in Section 6.4(3), the
Corporation shall indemnify the Indemnitees to the full extent permitted by
Delaware law.
(b) For the purposes of this Section 6.4, the term
"Indemnitee" shall mean any person made or threatened to be made a party to any
civil, criminal, administrative or investigative action, suit or proceeding by
reason of the fact that such person or such person's testator or intestate is or
was a director, officer or employee of the Corporation or serves or served at
the request of the Corporation any other enterprise as a director, officer or
employee.
(c) For purposes of this Section 6.4, the term
"Corporation" shall include any predecessor of the Corporation and any
constituent corporation (including any constituent of a constituent) absorbed by
the Corporation in a consolidation or merger; the term "other enterprise" shall
include any corporation, partnership, joint venture, trust or employee benefit
plan; service "at the request of the Corporation" shall include service as a
director, officer, employee or agent of the Corporation which imposes duties on,
or involves services by, such director, officer, employee or agent with respect
to an employee benefit plan, its participants or beneficiaries; any excise taxes
assessed on a person with respect to an employee benefit plan shall be deemed to
be an Expense; and action by a person with respect to an employee benefit plan
which such person reasonably believes to be in the interest of the participants
and beneficiaries of such plan shall be deemed to be action not opposed to the
best interests of the Corporation.
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2. Expenses.
(a) Expenses reasonably incurred by Indemnitee in defending
any such action, suit or proceeding, as described in Section 6.4(1)(b), shall be
paid or reimbursed by the Corporation promptly upon receipt by it of an
undertaking of Indemnitee to repay such expenses if it shall ultimately be
determined that he or she is not entitled to be indemnified by the Corporation.
(b) For the purposes of this Section 6.4, the term "Expenses"
shall include all reasonable out of pocket fees, costs and expenses, including
without limitation, attorneys' fees, retainers, court costs, transcript costs,
fees of experts, witness fees, travel expenses, duplicating costs, printing and
binding costs, telephone charges, postage, delivery service fees, and all other
disbursements or expenses of the types customarily incurred in connection with
defending, preparing to defend, or investigating an action, suit or proceeding,
whether civil, criminal, administrative or investigative but shall exclude the
costs of acquiring and maintaining an appeal or supersedeas bond or similar
instrument. For the avoidance of doubt, "Expenses" shall not include (i) any
amounts incurred in an action, suit or proceeding in which Indemnitee is a
plaintiff and (ii) any amounts incurred in connection with any non-compulsory
counterclaim brought by the Indemnitee.
3. Limitations. The Corporation shall not indemnify Indemnitee
or advance Indemnitee's Expenses if the action, suit or proceeding alleges (1)
claims under Section 16 of the Securities Exchange Act of 1934 or (2) violations
of Federal or state insider trading laws, unless, in the case of this clause
(2), Indemnitee has been successful on the merits or settled the case with the
written consent of the Corporation, in which case the Corporation shall
indemnify and reimburse Indemnitee.
4. Standard of Conduct. No claim for indemnification shall be
paid by the Corporation unless the Corporation has determined that Indemnitee
acted in good faith and in a manner Indemnitee reasonably believed to be in or
not opposed to the best interest of the Corporation and, with respect to any
criminal action or proceeding, had no reasonable cause to believe that his or
her conduct was unlawful. Unless ordered by a court, such determinations shall
be made by (1) a majority vote of the directors who are not parties to the
action, suit or proceeding for which indemnification are sought, even though
less than a quorum, or (2) by a committee of such directors designated by a
majority vote of directors, even though less than a quorum, or (3) if there are
no such directors, or if such directors direct, by independent legal counsel in
a written opinion, or (4) by stockholders.
5. Period of Indemnity. No claim for indemnification or the
reimbursement of Expenses shall be made by Indemnitee or paid by the Corporation
unless the Indemnitee gives notice of such claim for indemnification within one
year after the Indemnitee received notice of the claim, action, suit or
proceeding.
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6. Confidentiality. Except as required by law or as otherwise
becomes public through no action by the Indemnitee or as necessary to assert
Indemnitee's rights under this Section 6.4, Indemnitee will keep confidential
any information that arises in connection with this Section 6.4, including but
not limited to, claims for indemnification or reimbursement of Expenses, amounts
paid or payable under this Section 6.4 and any communications between the
parties.
7. Subrogation. In the event of payment under this Section
6.4, the Corporation shall be subrogated to the extent of such payment to all of
the rights of recovery of Indemnitee (under any insurance policy or otherwise),
who shall execute all papers required and shall do everything necessary to
secure such rights, including the execution of such documents necessary to
enable the Corporation to effectively bring suit to enforce such rights.
8. Notice by Indemnitee. Indemnitee shall promptly notify the
Corporation in writing upon being served with any summons, citation, subpoena,
complaint, indictment, information or other document relating to any matter
which may be subject to indemnification or reimbursement of Expenses covered by
this Section 6.4. As a condition to indemnification or reimbursement of
expenses, any demand for payment by Indemnitee hereunder shall be in writing and
shall provide an accounting of the amounts to be paid by Corporation (which
shall include detailed invoices and other relevant documentation).
9. Venue. Any action, suit or proceeding regarding
indemnification or advancement or reimbursement of Expenses arising out of the
by-laws or otherwise shall only be brought and heard in Delaware Court of
Chancery.
10. Amendment. No amendment of this Section 6.4 shall impair
the rights of any Indemnitee arising at any time with respect to events
occurring prior to such amendment.
Section 6.5. Interested Directors; Quorum. No contract or
transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any other corporation, partnership,
association or other organization in which one or more of its directors or
officers are directors or officers, or have a financial interest, shall be void
or voidable solely for this reason, or solely because the director or officer is
present at or participates in the meeting of the Board of Directors or committee
thereof which authorizes the contract or transaction, or solely because his or
her or their votes are counted for such purpose, if: (1) the material facts as
to his or her relationship or interest and as to the contract or transaction are
disclosed or are known to the Board or the committee, and the Board or committee
in good faith authorizes the contract or transaction by the affirmative votes of
a majority of the disinterested directors, even though the disinterested
directors be less than a quorum; or (2) the material facts as to his or her
relationship or interest and as to the contract or transaction are disclosed or
are known to the stockholders entitled to vote thereon, and the contract or
transaction is
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specifically approved in good faith by vote of the stockholders; or (3) the
contract or transaction is fair as to the Corporation as of the time it is
authorized, approved or ratified, by the Board, a committee thereof or the
stockholders. Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the Board or of a committee which
authorizes the contract or transaction.
Section 6.6. Form of Records. Any records maintained by the
Corporation in the regular course of its business, including its stock ledger,
books of account and minute books, may be kept on, or be in the form of, punch
cards, magnetic tape, photographs, microphotographs or any other information
storage device, provided that the records so kept can be converted into clearly
legible form within a reasonable time. The Corporation shall so convert any
records so kept upon the request of any person entitled to inspect the same.
Section 6.7. Dividends. Subject to the provisions of the
certificate of incorporation, the Board of Directors may, out of funds legally
available therefor at any regular or special meeting, declare dividends upon the
capital stock of the Corporation as and when they deem expedient. Before
declaring any dividend, the Board may cause to be set apart out of any funds of
the Corporation available for dividends, such sum or sums as the directors from
time to time in their discretion deem proper for working capital or as a reserve
fund to meet contingencies or for equalizing dividends or for such other
purposes as the directors shall deem conducive to the interests of the
Corporation.
Section 6.8. Amendment of By-Laws. These by-laws may be
amended or repealed, and new by-laws adopted, by the affirmative vote of a
majority of the Board of Directors, but the holders of a majority of the shares
then entitled to vote may adopt additional by-laws and may amend or repeal any
by-law whether or not adopted by them.
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