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AMENDED AND RESTATED BY-LAWS
OF
LEAR SEATING CORPORATION
(hereinafter called the "Corporation")
ARTICLE I
OFFICES
Section 1.1. Registered Office. The registered office of the Corporation
shall be in the City of Wilmington, County of New Castle, State of Delaware.
Section 1.2. Other Offices. The Corporation may also have offices at such
other places both within and without the State of Delaware as the Board of
Directors may from time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 2.1. Place of Meetings. Meetings of the stockholders for the
election of directors or for any other purpose shall be held at such time and
place, either within or without the State of Delaware, as shall be designated
from time to time by the Board of Directors and stated in the notice of the
meeting or in a duly executed waiver of notice thereof.
Section 2.2. Annual Meetings. The Annual Meetings of stockholders shall be
held on such date and at such time as shall be designated from time to time by
the Board of Directors and stated in the notice of the meeting, at which
meetings the stockholders shall elect by a plurality vote a Board of Directors,
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and transact such other business as may properly be brought before the meeting.
Written notice of the Annual Meeting stating the place, date and hour of the
meeting shall be given to each stockholder entitled to vote at such meeting not
less than 10 nor more than 60 days before the date of the meeting.
Section 2.3 Nominating Directors. Only persons who are nominated in
accordance with the following procedures shall be eligible to serve as
directors. Nominations of persons for election to the Board of Directors at a
meeting of stockholders may be made (i) by or at the direction of the Board of
Directors or (ii) by any stockholder of the Corporation entitled to vote for
the election of directors at the meeting who complies with the notice
procedures set forth in this Article II, Section 2.3. Such nominations, other
than those made by or at the direction of the Board of Directors, shall be made
pursuant to timely notice in writing to the Secretary of the Corporation. To
be timely, a stockholder's notice must be delivered to, or mailed and received
by, the Secretary of the Corporation at the principal executive offices of the
Corporation not less than 60 or more than 90 days prior to the meeting;
provided, however, that if the Corporation has not "publicly disclosed" (in the
manner provided in the last sentence of this Article II, Section 2.3) the date
of the meeting at least 70 days prior to the meeting date, notice may be timely
made by a stockholder under this Article II, Section 2.3 if received by the
Secretary of the Corporation not later than the close of business on the tenth
day following the day on which the
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Corporation publicly disclosed the meeting date. Such stockholder's notice
shall set forth (i) as to each person whom the stockholder proposes to nominate
for election or re-election 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 (including
such person's written consent to being named in the proxy statement as a
nominee and to serving as director if elected); and (ii) as to the stockholder
giving notice (A) the name and address, as they appear on the Corporation's
books, of such stockholder, (B) the class and number of shares of capital stock
of the Corporation which are beneficially owned by such stockholder and (C) a
representation that such stockholder intends to appear in person or by proxy at
the Annual Meeting to nominate the persons named in its notice. At the request
of the Board of Directors any person nominated by the Board of Directors for
election as a director shall furnish to the Secretary of the Corporation that
information required to be set forth in a stockholder's notice of nomination
which pertains to the nominee. No person shall be eligible to serve as a
director of the Corporation unless nominated in accordance with the procedures
set forth herein. The presiding officer shall, if the facts so warrant,
determine and declare to the meeting that a nomination was not made in
accordance with the procedures prescribed by the By-Laws, and the defective
nomination shall be disregarded. For purposes of these By-Laws, "publicly
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disclosed" or "public disclosure" shall mean disclosure in a press release
reported by the Dow Jones News Service, Associated Press, or a comparable
national news service or in a document publicly filed by the Corporation with
the Securities and Exchange Commission.
Section 2.4. Notice of Business. At an Annual Meeting of the stockholders,
only such business shall be conducted as shall have been brought before the
meeting (i) by or at the direction of the Board of Directors or (ii) by any
stockholder of the Corporation who complies with the notice procedures set
forth in this Article II, Section 2.4. For business to be properly brought
before an Annual Meeting by a stockholder, the stockholder must deliver written
notice to, or mail such written notice so that it is received by, the Secretary
of the Corporation, at the principal executive offices of the Corporation, not
less than 120 or more than 150 days prior to the first anniversary of the date
of the Corporation's consent solicitation or proxy statement released to
stockholders in connection with the previous year's election of directors or
meeting of stockholders, except that if no Annual Meeting of stockholders or
election by consent was held in the previous year or if the date of the Annual
Meeting has been changed from the previous year's meeting, a proposal shall be
received by the Corporation within 10 days after the Corporation has "publicly
disclosed" the date of the meeting in the manner provided in Article II,
Section 2.3. above. The stockholder's notice to the Secretary shall set forth
as to each matter the stockholder
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proposes to bring before the Annual Meeting (A) a brief description of the
business desired to be brought before the Annual Meeting and the reasons for
conducting such business at the Annual Meeting, (B) the name and address, as
they appear on the Corporation's books, of the stockholder proposing such
business, (C) the class and number of shares of the Corporation which are
beneficially owned by the stockholder, (D) a description of all arrangements or
understandings between such stockholder and any other person or persons
(including their names) in connection with the proposal of such business by
such stockholder and any other material interest of such stockholder in such
business and (E) a representation that such stockholder intends to appear in
person or by proxy at the Annual Meeting to bring such business before the
meeting. At an Annual Meeting, the presiding officer shall, if the facts
warrant, determine and declare to the meeting that business was not properly
brought before the meeting in accordance with the provisions of this Article
II, Section 2.4., and such business not properly brought before the meeting
shall not be transacted. Whether or not the foregoing procedures are followed,
no matter which is not a proper matter for stockholder consideration shall be
brought before the meeting.
Section 2.5. Special Meetings. Unless otherwise prescribed by law or by
the Certificate of Incorporation, Special Meetings of stockholders, for any
purpose or purposes, may be called by either (i) the Chairman, if there be one,
or (ii) the President, (iii) any Vice President, if there be one, (iv) the
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Secretary or (v) any Assistant Secretary, if there be one, and shall be called
by any such officer at the request in writing of a majority of the Board of
Directors or at the request in writing of stockholders owning at least a
majority of the capital stock of the Corporation issued and outstanding and
entitled to vote. Such request shall state the purpose or purposes of the
proposed meeting. The business transacted at any Special Meeting of the
stockholders shall be limited to the purposes stated in the notice for the
meeting transmitted to stockholders. Written notice of a Special Meeting
stating the place, date and hour of the meeting and the purpose or purposes for
which the meeting is called shall be given not less than 10 nor more than 60
days before the date of the meeting to each stockholder entitled to vote at
such meeting.
Section 2.6. Waiver of Notice. Notice of the time, place and purpose or
purposes of any meeting of stockholders may be waived by a written waiver
thereof, signed by the person entitled to notice. Such waiver, 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.
Section 2.7. Record Date. In order that the Corporation may determine the
stockholders entitled to vote at any meeting of stockholders or any adjournment
thereof, or entitled to express
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consent to corporate action in writing without a meeting, or entitled to
receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion
or exchange of stock or for the purpose of any other lawful action, the Board
of Directors may fix a record date, which shall not precede the date upon which
the resolution fixing the record date is adopted, and which shall be (i) not
more than 60 nor less than 10 days before the date of a meeting, and (ii) not
more than 60 days prior to the other action. A determination of stockholders
of record entitled to notice of or to vote at a meeting of stockholders shall
apply to any adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for any adjourned meeting.
Section 2.8. List of Stockholders Entitled to Vote. The officer who has
charge of the stock ledger of the Corporation shall prepare and make, at least
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 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
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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 2.9. Stock Ledger. The stock ledger of the Corporation shall be
the only evidence as to who are the stockholders entitled to examine the stock
ledger, the list required by Section 2.8. of this Article II or the books of
the Corporation, or to vote in person or by proxy at a meeting of stockholders.
Section 2.10. Quorum. Except as otherwise provided by law or by the
Certificate of Incorporation, the holders of a majority of the capital stock
issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business. If, however, such quorum shall
not be present or represented at any meeting of the stockholders, the
stockholders entitled to vote thereat, present in person or represented by
proxy, shall have power to adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present
or represented. At such adjourned meeting at which a quorum shall be present
or represented, any business may be transacted which might have been transacted
at the meeting as originally noticed. If the adjournment is for more than 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
entitled to vote at the meeting.
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Section 2.11. Voting. When a quorum is present at any meeting, the
affirmative vote of the holders of a majority of the stock represented and
entitled to vote thereat shall decide any question brought before such meeting,
unless the question is one upon which by express provision of applicable law,
the Certificate of Incorporation or these By-Laws, a different vote is required
in which case such express provision shall govern and control the decision of
such question.
Section 2.12. Proxy. Unless otherwise provided in the Certificate of
Incorporation, each stockholder shall at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of the capital stock
having voting power held by such stockholder, but no proxy shall be voted on
after three years from its date, unless the proxy provides for a longer period.
At any meeting of the stockholders, every stockholder entitled to vote may vote
in person or by proxy authorized by an instrument in writing or by a
transmission permitted by law filed in accordance with the procedure
established for the meeting. Any copy, facsimile telecommunication or other
reliable reproduction of the writing or transmission created pursuant to this
paragraph 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. All
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voting, excepting where otherwise required by law, the Certificate of
Incorporation or the Board of Directors may be by a voice vote.
Section 2.13. Chairman of Meeting. The Chairman of the Board of Directors
shall preside at all meetings of the stockholders. In the absence or inability
to act of the Chairman, the Vice Chairman, the Chief Executive Officer, the
President or a Vice President (in that order) shall preside, and in their
absence or inability to act another person designated by one of them shall
preside. The Secretary of the Corporation shall act as secretary of each
meeting of the stockholders. In the event of his absence or inability to act,
the chairman of the meeting shall appoint a person who need not be a
stockholder to act as secretary of the meeting.
Section 2.14. Conduct of Meetings. Meetings of the stockholders shall be
conducted in a fair manner but need not be governed by any prescribed rules of
order. The presiding officer's rulings on procedural matters shall be final.
The presiding officer is authorized to impose reasonable time limits on the
remarks of individual stockholders and may take such steps as such officer may
deem necessary or appropriate to assure that the business of the meeting is
conducted in a fair and orderly manner.
Section 2.15. Action Without a Meeting. Unless otherwise provided in the
Certificate of Incorporation, any action required or permitted to be taken at
any Annual or Special Meeting of stockholders of the Corporation, may be taken
without a meeting, without prior notice and without a vote, if a consent in
writing,
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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. 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.
ARTICLE III
DIRECTORS
Section 3.1. Duties and Number of Directors. The business and affairs of
the Corporation shall be managed by or under the direction of a Board of
Directors consisting of not less than one (1) nor more than eleven (11)
directors. The exact number shall be determined from time to time by
resolution adopted by the affirmative vote of a majority of the directors in
office at the time of adoption of such resolution.
Section 3.2. Resignation, Removal and Vacancies. Each director shall hold
office until his successor is elected and qualified, subject, however, to his
or her prior death, resignation, retirement or removal from office. Any
director may resign at any time upon written notice to the Corporation directed
to the Board of Directors or the Secretary of the Corporation. Such
resignation shall take effect at the time specified therein, and unless
otherwise specified therein no acceptance of such resignation shall be
necessary to make it effective. Any director
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or the entire Board of Directors may be removed, for Cause, by the vote of the
holders of at least a majority of shares of capital stock then entitled to vote
at an election of directors. Whenever the holders of shares of any class or
series of capital 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 with cause of a director or
directors so elected, to the vote of the holders of the outstanding shares of
that class or series of capital stock and not to the vote of the holders of the
outstanding shares of capital stock as a whole. Unless otherwise provided by
the Certificate of Incorporation, vacancies and newly created directorships
resulting from any increase in the authorized number of directors may be filled
by the vote of a majority of the directors then in office provided that a
quorum is present, and any other vacancy occurring in the Board of Directors
may be filled by a majority of the directors then in office, even if less than
a quorum, unless otherwise provided in the Certificate of Incorporation. Any
director elected to fill a vacancy not resulting from an increase in the number
of directors shall have the same remaining term as that of his or her
predecessor. For the purposes of this Section 3.2, "Cause" is defined as the
willful and continuous failure substantially to perform one's duties to the
Corporation or the willful engaging in gross misconduct materially and
demonstrably injurious to the Company.
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Section 3.3. Special Voting Rights of Stockholders. Notwithstanding the
foregoing, whenever the holders of any one or more classes or series of
preferred stock issued by the Corporation in accordance with the Corporation's
Certificate of Incorporation shall have the right, voting separately by class
or series, to elect directors at an Annual or Special Meeting of stockholders,
the election, term of office, filling of vacancies and other features of such
directorship shall be governed by the resolutions of the Board of Directors
applicable to such series of preferred stock.
Section 3.4. Interested Directors. 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 their
votes are counted for such purpose if (i) the material facts as to his or their
relationship or interest and as to the contract or transaction are disclosed or
are known to the Board of Directors or the committee, and the Board of
Directors 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
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directors be less than a quorum; or (ii) the material facts as to his or their
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 specifically approved in good faith by vote of the stockholders;
or (iii) the contract or transaction is fair as to the Corporation as of the
time it is authorized, approved or ratified by the Board of Directors, 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 of
Directors or of a committee which authorizes the contract or transaction.
MEETINGS OF THE BOARD OF DIRECTORS
Section 3.5. General. The Board of Directors of the Corporation may hold
meetings, both regular and special, either within or without the State of
Delaware. Members of the Board of Directors may participate in any such
meeting by means of conference telephone or similar communications equipment
through which all persons participating in the meeting can hear each other, and
participation by such means shall constitute presence in person at such
meeting.
Section 3.6. First Meeting. The first meeting of each newly elected Board
of Directors shall be held immediately following the adjournment of the Annual
Meeting of the stockholders at the same place as such Annual Meeting and no
notice of such meeting shall be necessary to the newly elected directors in
order
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legally to constitute the meeting, provided a quorum shall be present. In the
event such meeting is not held at such time and place, the meeting may be held
at such time and place as shall be specified in a notice given as hereinafter
provided for Special Meetings of the Board of Directors, or as shall be
specified in a written waiver signed by all of the directors.
Section 3.7. Notice. Written notice of each meeting of the Board of
Directors shall be given which shall state the date, time and place of the
meeting. The written notice of any meeting shall be given at least 24 hours in
advance of the meeting to each director. Notice may be given by letter,
telegram, telex or facsimile and shall be deemed to have been given when
deposited in the United States mail, delivered to the telegraph company or
transmitted by telex or facsimile, as the case may be. Notice of any meeting
of the Board of Directors for which a notice is required may be waived in
writing signed by the person or persons entitled to such notice, whether before
or after the time of such meeting, and such waiver shall be equivalent to the
giving of such notice. Attendance of a director at any such meeting shall
constitute a waiver of notice thereof, except where a director attends a
meeting for the express purpose of objecting to the transaction of any business
because such meeting is not lawfully convened. Neither the business to be
transacted at nor the purpose of any meeting of the Board of Directors for
which a notice is required need be specified in the notice, or waiver of
notice, of such meeting.
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Section 3.8. Special Meetings. Special Meetings of the Board of Directors
may be called by the Chairman of the Board of Directors or the President either
personally, or by courier, telephone, telefax, mail or telegram. Special
Meetings shall be called by the Chairman or President in like manner and on
like notice at the written request of a majority of the directors comprising
the Board of Directors stating the purpose or purposes for which such meeting
is requested.
Section 3.9. Quorum. At all meetings of the Board of Directors a majority
of the then duly elected directors shall constitute a quorum for the
transaction of business and the act of a majority of the directors present at
any meeting at which there is a quorum shall be the act of the Board of
Directors, except as may be otherwise specifically provided by statute or by
the Certificate of Incorporation. If a quorum shall not be present at any
meeting of the Board of Directors, the directors present thereat may adjourn
the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
Section 3.10. Action Without a Meeting. Unless otherwise provided by the
Certificate of Incorporation, any action required or permitted to be taken at
any meeting of the Board of Directors or any committee designated by the Board
of Directors may be taken without a meeting if all members of the Board of
Directors or of such committee consent thereto in writing, and the writing or
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writings are filed with the minutes of proceedings of the Board of Directors or
such committee.
Section 3.11. Chairman of the Meeting. Meetings of the Board of Directors
shall be presided over by the Chairman, if any, or in his absence by the Vice
Chairman, if any, or in his absence by the President, or in their absence by a
chairman chosen at the meeting. The Secretary shall act as secretary of the
meeting, but in his absence the chairman of the meeting may appoint any person
to act as secretary of the meeting.
COMMITTEES OF DIRECTORS
Section 3.12. General. The Board of Directors may, by resolution passed by
a majority of the entire Board of Directors, designate one or more committees,
each committee to consist of one or more of the directors of the Corporation.
The Board of Directors 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, and in the absence of a designation by the Board of Directors of an
alternate member to replace the absent or disqualified member, 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. Any such committee, to the extent
allowed by law and provided in
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the resolution of the Board of Directors establishing such committee, 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.
Section 3.13. Meeting. Each committee shall keep regular minutes of its
meetings and shall file such minutes and all written consents executed by its
members with the Secretary of the Corporation. Each committee may determine
the procedural rules for meeting and conducting its business and shall act in
accordance therewith, except as otherwise provided herein or required by law.
Adequate provision shall be made for notice to members of all meetings; a
majority of the members shall constitute a quorum unless the committee shall
consist of one or two members, in which event one member shall constitute a
quorum; and all matters shall be determined by a majority vote of the members
present. Action may be taken by any committee without a meeting if all members
thereof consent thereto in writing, and the writing or writings are filed with
the minutes of the proceedings of such committee. Members of any committee of
the Board of Directors may participate in any meeting of such committee by
means of conference telephone or similar communications equipment by means of
which all persons participating may hear each other, and participation in a
meeting by such means shall constitute presence in person at such meeting.
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COMPENSATION OF DIRECTORS
Section 3.14. General. In the discretion of the Board of Directors, the
directors may be paid their expenses, if any, of attendance at each meeting of
the Board of Directors and may be paid a fixed sum for attendance at each
meeting of the Board of Directors. In addition, in the discretion of the Board
of Directors, the directors may receive a stated salary for serving as
directors or any other form of compensation deemed appropriate. No such
payment shall preclude any director from serving the Corporation in any other
capacity and receiving compensation therefor. Members of special or standing
committees may be allowed like compensation for serving on or attending
committee meetings.
ARTICLE IV
OFFICERS
Section 4.1. General. The officers of the Corporation shall be chosen by
the Board of Directors and shall be a Chief Executive Officer, a President, a
Secretary and a Treasurer. The Board of Directors, in its discretion, may also
choose a Chairman of the Board of Directors (who must be a director) and one or
more Vice Presidents, Assistant Secretaries, Assistant Treasurers and other
officers. Any number of offices may be held by the same person, unless
otherwise prohibited by law, the Certificate of Incorporation or these By-Laws.
The officers of the Corporation need not be stockholders of the Corporation
nor, except in the case
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of the Chairman of the Board of Directors, need such officers be directors of
the Corporation.
Section 4.2. Election. The Board of Directors at its first meeting held
after each Annual Meeting of stockholders shall elect the officers of the
Corporation who shall hold their offices for such terms and shall exercise such
powers and perform such duties as shall be determined from time to time by the
Board of Directors; and all officers of the Corporation shall hold office until
their successors are chosen and qualified, or until their earlier resignation
or removal. Any officer may resign at any time upon written notice to the
Corporation directed to the Board of Directors and the Secretary. Such
resignation shall take effect at the time specified therein, and unless
otherwise specified therein no acceptance of such resignation shall be
necessary to make it effective. The Board of Directors may remove any officer
or agent with or without cause at any time by the affirmative vote of a
majority of the Board of Directors. Any such removal shall be without
prejudice to the contractual rights of such officer or agent, if any, with the
Corporation, but the election of an officer or agent shall not of itself create
any contractual rights. Any vacancy occurring in any office of the Corporation
by death, resignation, removal or otherwise may be filled by the Board of
Directors. The salaries of all officers of the Corporation shall be fixed by
the Board of Directors.
Section 4.3. Voting Securities Owned by the Corporation. Notwithstanding
anything to the contrary contained herein, powers
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of attorney, proxies, waivers of notice of meeting, consents and other
instruments relating to securities owned by the Corporation may be executed in
the name of and on behalf of the Corporation by the President or any Vice
President and any such officer may, in the name of and on behalf of the
Corporation, take all such action as any such officer may deem advisable to
vote in person or by proxy at any meeting of security holders of any
corporation in which the Corporation may own securities and at any such meeting
shall possess and may exercise any and all rights and powers incident to the
ownership of such securities and which, as the owner thereof, the Corporation
might have exercised and possessed if present. The Board of Directors may, by
resolution, from time to time confer like powers upon any other person or
persons.
Section 4.4. Chairman of the Board of Directors. The Chairman of the Board
of Directors, if there be one, shall preside at all meetings of the
stockholders and of the Board of Directors. In the absence or disability of
the Chief Executive Officer, he shall be the Chief Executive Officer of the
Corporation, and except where by law the signature of the President is
required, the Chairman of the Board of Directors shall possess the same power
as the President to sign all contracts, certificates and other instruments of
the Corporation which may be authorized by the Board of Directors. During the
absence or disability of the President, the Chairman of the Board of Directors
shall exercise all the powers and discharge all the duties of the President.
The Chairman of the Board of Directors shall also perform such other duties and
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may exercise such other powers as from time to time may be assigned to him by
these By-Laws or by the Board of Directors.
Section 4.5. Chief Executive Officer. The Chief Executive Officer shall be
the principal executive officer of the Corporation. The Chief Executive
Officer, except where by law the signature of the President is required, shall
possess the same power as the President to sign all contracts, certificates and
other instruments of the Corporation which may be authorized by the Board of
Directors. During the absence or disability of the President and the Chairman
of the Board of Directors, the Chief Executive Officer shall exercise all the
powers and discharge all the duties of the President. The Chief Executive
Officer shall also perform such other duties and may exercise such other powers
as from time to time may be assigned to him by these By-Laws or by the Board of
Directors.
Section 4.6. President. The President shall, subject to the control of the
Board of Directors, the Chairman of the Board of Directors, if there be one,
and the Chief Executive Officer, have general supervision of the business of
the Corporation and shall see that all orders and resolutions of the Board of
Directors are carried into effect. He shall execute all bonds, mortgages,
contracts and other instruments of the Corporation requiring a seal under the
seal of the Corporation, except where required or permitted by law to be
otherwise signed and executed and except that the other officers of the
Corporation may sign and execute documents when so authorized by these By-Laws,
the Board of
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Directors or the President. In the absence or disability of the Chairman of
the Board of Directors, if there be one, and the Chief Executive Officer, the
President shall preside at all meetings of the stockholders and the Board of
Directors. If there be no Chairman of the Board of Directors or Chief
Executive Officer, the President shall be the Chief Executive Officer of the
Corporation. The President shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these
By-Laws or by the Board of Directors.
Section 4.7. Vice Presidents. At the request of the President or in his
absence or in the event of his inability or refusal to act (and if there be no
Chairman of the Board of Directors or Chief Executive Officer), the Vice
President or the Vice Presidents if there is more than one (in the order
designated by the Board of Directors) shall perform the duties of the
President, and when so acting, shall have all the powers of and be subject to
all the restrictions upon the President. Each Vice President shall perform
such other duties and have such other powers as the Board of Directors from
time to time may prescribe. If there be no Chairman of the Board of Directors,
no Chief Executive Officer and no Vice President, the Board of Directors shall
designate the officer of the Corporation who, in the absence of the President
or in the event of the inability or refusal of the President to act, shall
perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President.
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Section 4.8. Secretary. The Secretary shall attend all meetings of the
Board of Directors and all meetings of stockholders and record all the
proceedings thereat in a book or books to be kept for that purpose; the
Secretary shall also perform like duties for the standing and special
committees of the Board of Directors when required. The Secretary shall give,
or cause to be given, notice of all meetings of the stockholders and Special
Meetings of the Board of Directors, and shall perform such other duties as may
be prescribed by the Board of Directors or Chief Executive Officer, under whose
supervision he shall be. If the Secretary shall be unable or shall refuse to
cause to be given notice of all meetings of the stockholders and Special
Meetings of the Board of Directors, and if there be no Assistant Secretary,
then either the Board of Directors or the Chief Executive Officer may choose
another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant
Secretary, if there be one, shall have authority to affix the same to any
instrument requiring it and when so affixed, it may be attested by the
signature of the Secretary or by the signature of any such Assistant Secretary.
The Board of Directors may give general authority to any other officer to affix
the seal of the Corporation and to attest the affixing by his signature. The
Secretary shall see that all books, reports, statements, certificates and other
documents and records required by law to be kept or filed are properly kept or
filed, as the case may be.
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Section 4.9. Treasurer. The Treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be
ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the Chief Executive Officer and the Board of
Directors, at its regular meetings, or when the Board of Directors so requires,
an account of all his transactions as Treasurer and of the financial condition
of the Corporation. If required by the Board of Directors, the Treasurer shall
give the Corporation a bond in such sum and with such surety or sureties as
shall be satisfactory to the Board of Directors for the faithful performance of
the duties of his office and for the restoration to the Corporation, in case of
his death, resignation, retirement or removal from office, of all books,
papers, vouchers, money and other property of whatever kind in his possession
or under his control belonging to the Corporation.
Section 4.10. Assistant Secretaries. Except as may be otherwise provided
in these By-Laws, Assistant Secretaries, if there be any, shall perform such
duties and have such powers as from time to time may be assigned to them by the
Board of Directors, the Chief Executive Officer, the President, any Vice
President, if there be one, or the Secretary, and in the absence of
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the Secretary or in the event of his disability or refusal to act, shall
perform the duties of the Secretary, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the Secretary.
Section 4.11. Assistant Treasurers. Assistant Treasurers, if there be any,
shall perform such duties and have such powers as from time to time may be
assigned to them by the Board of Directors, the Chief Executive Officer, the
President, any Vice President, if there be one, or the Treasurer, and in the
absence of the Treasurer or in the event of his disability or refusal to act,
shall perform the duties of the Treasurer, and when so acting, shall have all
the powers of and be subject to all the restrictions upon the Treasurer. If
required by the Board of Directors, an Assistant Treasurer shall give the
Corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the Board of Directors for the faithful performance of the
duties of his office and for the restoration to the Corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the Corporation.
Section 4.12. Other Officers. Such other officers as the Board of
Directors may choose shall perform such duties and have such powers as from
time to time may be assigned to them by the Board of Directors. The Board of
Directors may delegate to any
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other officer of the Corporation the power to choose such other officers and to
prescribe their respective duties and powers.
ARTICLE V
STOCK
Section 5.1. Form of Certificates. Every holder of stock in the
Corporation shall be entitled to have a certificate signed, in the name of the
Corporation (i) by the Chairman of the Board of Directors, the Chief Executive
Officer, the President or a Vice President and (ii) by the Treasurer or an
Assistant Treasurer, or the Secretary or an Assistant Secretary of the
Corporation, certifying the number of shares owned by him in the Corporation.
If the Corporation shall be authorized to issue more than one class of stock or
more than one series of any class, the designations, preferences and relative,
participating, optional or other special rights of each class of stock or
series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights shall be set forth in full or summarized on the face
or back of the certificate which the Corporation shall issue to represent such
class or series of stock; provided that, except as otherwise provided in
Section 202 of the General Corporation Law of the State of Delaware, in lieu of
the foregoing requirements, there may be set forth on the face or back of the
certificate which the Corporation shall issue to represent such class or series
of stock, a statement that the Corporation will furnish without charge to each
stockholder who so requests the designations, preferences and
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relative, participating, optional or other special rights of each class of
stock or series thereof and the qualifications, limitations or restrictions of
such preferences and/or rights.
Section 5.2. Signatures. Where a certificate is countersigned by (i) a
transfer agent other than the Corporation or its employee, or (ii) a registrar
other than the Corporation or its employee, 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 he were such officer, transfer agent or registrar at the date
of issue.
Section 5.3. Lost Certificates. The Board of Directors may direct a new
certificate to be issued in place of any certificate theretofore issued by the
Corporation alleged to have been lost, stolen or destroyed, upon the making of
an affidavit of that fact by the person claiming the certificate of stock to be
lost, stolen or destroyed. When authorizing such issue of a new certificate,
the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed
certificate, or his legal representative, to advertise the same in such manner
as the Board of Directors shall require and/or to give the Corporation a bond
in such sum as it may direct as indemnity against any claim that may
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be made against the Corporation with respect to the certificate alleged to have
been lost, stolen or destroyed.
Section 5.4. Transfers. Stock of the Corporation shall be transferable in
the manner prescribed by law and in these By-Laws. Transfers of stock shall be
made on the books of the Corporation only by the person named in the
certificate or by his attorney lawfully constituted in writing and upon the
surrender of the certificate therefor, which shall be cancelled before a new
certificate shall be issued. Upon surrender to the Corporation or the transfer
agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the Corporation to issue a new certificate to
the person or persons entitled thereto, cancel the old certificate and record
the transaction upon its books.
Section 5.5. Registered Stockholders. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends, and to vote as such owner, and to hold liable
for calls and assessments a person registered on its books as the owner of
shares, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or
not it shall have express or other notice thereof, except as otherwise provided
by law.
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ARTICLE VI
NOTICES
Section 6.1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these By-Laws to be given to any director,
member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder at his address
as it appears on the records of the Corporation, with postage thereon prepaid,
and such notice shall be deemed to be given at the time when the same shall be
deposited in the United States mail. Written notice may also be given
personally or by telegram, telex or cable.
Section 6.2. Waivers of Notice. Whenever any notice is required by law,
the Certificate of Incorporation or these By-Laws to be given to any director,
member of a committee or stockholder, a waiver thereof in writing signed by the
person or persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 7.1. Dividends. Dividends upon the capital stock of the
Corporation, subject to the provisions of the Certificate of Incorporation, if
any, may be declared by the Board of Directors at any regular or Special
Meeting, and may be paid in cash, in property, or in shares of the capital
stock or rights to acquire the same. Before payment of any dividend, there may
be set
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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,
deems 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 any proper purpose, and the Board of Directors may modify or abolish any
such reserve.
Section 7.2. Disbursements. All checks or demands for money and notes of
the Corporation shall be signed by such officer or officers or such other
person or persons as the Board of Directors may from time to time designate.
Section 7.3. Fiscal Year. The fiscal year of the Corporation shall be
fixed by resolution of the Board of Directors.
Section 7.4. Corporate Seal. The corporate seal shall have inscribed
thereon the name of the Corporation, the year of its organization and the words
"Corporate Seal, Delaware". The seal may be used by causing it or a facsimile
thereof to be impressed or affixed or reproduced or otherwise.
ARTICLE VIII
INDEMNIFICATION
Section 8.1. Power to Indemnify in Actions, Suits or Proceedings Other Than
Those by or in the Right of the Corporation. Subject to Section 8.3 of this
Article VIII, 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
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or proceeding, whether civil, criminal, administrative or investigative (other
than an action by or in the right of the Corporation) by reason of the fact
that he is or was a director, officer, employee or agent of the Corporation, or
is or was a director or officer of the Corporation serving at the request of
the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and
in a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceedings, had reasonable cause to believe that his conduct was unlawful.
Section 8.2. Power to Indemnify in Actions, Suits or Proceedings by or in
the Right of the Corporation. Subject to Section 8.3 of this Article VIII, the
Corporation shall indemnify any person who was or is a party or is threatened
to be made a
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party to any threatened, pending or completed action or suit by or in the right
of the Corporation to procure a judgment in its favor by reason of the fact
that he is or was a director, officer, employee or agent of the Corporation, or
is or was a director or officer of the Corporation serving at the request of
the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection with the defense or settlement of such action or
suit if he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the Corporation; except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper.
Section 8.3. Authorization of Indemnification. Any indemnification under
this Article VIII (unless ordered by a court) shall be made by the Corporation
only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in the
circumstances because
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he has met the applicable standard of conduct set forth in Section 8.1 or
Section 8.2 of this Article VIII, as the case may be. Such determination shall
be made (i) by the Board of Directors by a majority vote of a quorum consisting
of directors who were not parties to such action, suit or proceeding, or (ii)
if such a quorum is not obtainable, or, even if obtainable a quorum of
disinterested directors so directs, by independent legal counsel in a written
opinion, or (iii) by the stockholders. To the extent, however, that a
director, officer, employee or agent of the Corporation has been successful on
the merits or otherwise in defense of any action, suit or proceeding described
above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith, without the necessity of
authorization in the specific case.
Section 8.4. Good Faith Defined. For purposes of any determination under
this Article VIII, a person shall be deemed to have acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests
of the Corporation, or, with respect to any criminal action or proceeding, to
have had no reasonable cause to believe his conduct was unlawful, if his action
is based on the records or books of account of the Corporation or another
enterprise, or on information supplied to him by the officers of the
Corporation or another enterprise in the course of their duties, or on the
advice of legal counsel for the Corporation or another enterprise or on
information or records given or reports
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made to the Corporation or another enterprise by an independent certified
public accountant or by an appraiser or other expert selected with reasonable
care by the Corporation or another enterprise. The term "another enterprise"
as used in this Section 8.4 shall mean any other corporation or any
partnership, joint venture, trust, employee benefit plan or other enterprise of
which such person is or was serving at the request of the Corporation as a
director, officer, employee or agent. The provisions of this Section 8.4 shall
not be deemed to be exclusive or to limit in any way the circumstances in which
a person may be deemed to have met the applicable standard of conduct set forth
in Sections 8.1 or 8.2 of this Article VIII, as the case may be.
Section 8.5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 8.3 of this Article VIII, and
notwithstanding the absence of any determination thereunder, any director,
officer, employee or agent may apply to any court of competent jurisdiction in
the State of Delaware for indemnification to the extent otherwise permissible
under Sections 8.1 and 8.2 of this Article VIII. The basis of such
indemnification by a court shall be a determination by such court that
indemnification of the director, officer, employee or agent is proper in the
circumstances because he has met the applicable standards of conduct set forth
in Section 8.1 or 8.2 of this Article VIII, as the case may be. Neither a
contrary determination in the specific case under Section 8.3 of this Article
VIII nor the absence of any determination thereunder
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shall be a defense to such application or create a presumption that the
director, officer, employee or agent seeking indemnification has not met any
applicable standard of conduct. Notice of any application for indemnification
pursuant to this Section 8.5 shall be given to the Corporation promptly upon
the filing of such application. If successful, in whole or in part, the
director, officer, employee or agent seeking indemnification shall also be
entitled to be paid the expense of prosecuting such application.
Section 8.6. Expenses Payable in Advance. Expenses incurred by a director
or officer in defending or investigating a threatened or pending action, suit
or proceeding shall be paid by the Corporation in advance of the final
disposition of such action, suit or proceeding upon receipt of an undertaking
by or on behalf of such director, officer, employee or agent to repay such
amount if it shall ultimately be determined that he is not entitled to be
indemnified by the Corporation as authorized in this Article VIII.
Section 8.7. Nonexclusivity of Indemnification and Advancement of Expenses.
The indemnification and advancement of expenses provided by or granted pursuant
to this Article VIII shall not be deemed exclusive of any other rights to which
a person seeking indemnification or advancement of expenses may be entitled
under any By-Law, agreement, contract, vote of stockholders or disinterested
directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity
and as to action in another capacity while holding such office, it being the
policy of the
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Corporation that indemnification of the persons specified in Section 8.1 and
8.2 of this Article VIII shall be made to the fullest extent permitted by law.
The provisions of this Article VIII shall not be deemed to preclude the
indemnification of any person who is not specified in Section 8.1 or 8.2 of
this Article VIII but whom the Corporation has the power or obligation to
indemnify under the provisions of the General Corporation Law of the State of
Delaware, or otherwise.
Section 8.8. Insurance. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a director or officer of the
Corporation, or is or was a director, officer, employee or agent of the
Corporation serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise against any liability asserted
against him and incurred by him in any such capacity, or arising out of his
status as such, whether or not the Corporation would have the power or the
obligation to indemnify him against such liability under the provisions of this
Article VIII.
Section 8.9. Certain Definitions. For purposes of this Article VIII,
references to "the Corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, employees or agents, so that any person who is
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or was a director or officer of such constituent corporation, or is or was a
director, officer, employee or agent of such constituent corporation serving at
the request of such constituent corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, shall stand in the same position under the
provisions of this Article VIII with respect to the resulting or surviving
corporation as he would have with respect to such constituent corporation if
its separate existence had continued. For purposes of this Article VIII,
references to "fines" shall include any excise taxes assessed on a person with
respect to an employee benefit plan; and references to "serving at the request
of the Corporation" shall include any 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; and a person who acted in good faith
and in a manner he reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be deemed to
have acted in a manner "not opposed to the best interests of the Corporation"
as referred to in this Article VIII.
Section 8.10. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant
to, this Article VIII shall continue as to a person who has ceased to be a
director,
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officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
Section 8.11. Limitation on Indemnification. Notwithstanding anything
contained in this Article VIII to the contrary, except for proceedings to
enforce rights to indemnification (which shall be governed by Section 8.5
hereof), the Corporation shall not be obligated to indemnify any director,
officer, employee or agent in connection with a proceeding (or part thereof)
initiated by such person unless such proceeding (or part thereof) was
authorized or consented to by the Board of Directors of the Corporation.
Section 8.12. Indemnification of Employees and Agents. The Corporation
may, to the extent authorized from time to time by the Board of Directors,
provide rights to indemnification and to the advancement of expenses to
employees and agents of the Corporation similar to those conferred in this
Article VIII to directors and officers of the Corporation.
Section 8.13. No amendment to or repeal of this Article VIII shall apply
to or have any effect on the rights of any person for or with respect to acts
or omissions of such person occurring prior to such amendment or repeal.
ARTICLE IX
AMENDMENTS
Section 9.1. These By-Laws may be altered, amended or repealed, in whole or
in part, or new By-Laws may be adopted by the
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stockholders or by the Board of Directors, provided, however, that notice of
such alteration, amendment, repeal or adoption of new By-Laws be contained in
the notice of such meeting of stockholders or Board of Directors as the case
may be. All such amendments must be approved by either the holders of a
majority of the outstanding capital stock entitled to vote thereon or by a
majority of the entire Board of Directors then in office.
Section 9.2. Entire Board of Directors. As used in this Article IX and in
these By-Laws generally, the term "entire Board of Directors" means the total
number of directors which the Corporation would have if there were no
vacancies.
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