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EXHIBIT 3.2
AMENDED BYLAWS
OF
ADMINISTAFF, INC.
Dated: March 7, 2001
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INDEX
ARTICLE I
OFFICES
Section 1.1 Principal Office ...........................................-5-
Section 1.2 Registered Office ..........................................-5-
Section 1.3 Other Offices ..............................................-5-
ARTICLE II
STOCKHOLDERS ...........................................................-5-
Stockholders' Meetings .................................................-5-
Section 2.1 Annual Meeting .............................................-5-
Section 2.2 Special Meetings ...........................................-5-
Section 2.3 Notice of Meetings and Adjourned Meetings ..................-6-
Section 2.4 Voting Lists ...............................................-6-
Section 2.5 Quorum .....................................................-7-
Section 2.6 Adjourned Meetings .........................................-7-
Section 2.7 Organization; Agenda .......................................-7-
Section 2.8 Voting .....................................................-7-
Section 2.9 Shares Held or Controlled by the Corporation ...............-8-
Section 2.10 Voting by Certain Persons or Entities .....................-8-
Section 2.11 Voting of Shares Subject to Joint Power ...................-8-
Section 2.12 Proxies ...................................................-9-
Section 2.13 Authorization of Proxies ..................................-9-
Section 2.14 Stockholders Entitled to Vote ............................-10-
Section 2.15 Order of Business ........................................-10-
Section 2.16 Inspectors of Election ...................................-10-
Section 2.17 Action by Written Consent ................................-11-
Section 2.18 Notice of Stockholder Nominees ...........................-11-
Section 2.19 Stockholder Proposals ....................................-12-
ARTICLE III
DIRECTORS .............................................................-12-
Section 3.1 Management ................................................-12-
Section 3.2 Number and Term ...........................................-13-
Section 3.3 Nominations ...............................................-13-
Section 3.4 Quorum and Manner of Action ...............................-13-
Section 3.5 Vacancies .................................................-13-
Section 3.6 Subject to Rights of Holders of Preferred Stock ...........-14-
Section 3.7 Resignations ..............................................-14-
Section 3.8 Removals ..................................................-15-
Section 3.9 Annual Meetings ...........................................-15-
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Section 3.10 Regular Meetings .........................................-15-
Section 3.11 Special Meetings .........................................-15-
Section 3.12 Organization of Meetings .................................-15-
Section 3.13 Presumption of Assent ....................................-15-
Section 3.14 Place of Meetings ........................................-16-
Section 3.15 Compensation of Directors ................................-16-
Section 3.16 Action by Unanimous Written Consent ......................-16-
Section 3.17 Participation in Meetings by Telephone ...................-16-
ARTICLE IV
COMMITTEES OF THE BOARD ...............................................-16-
Section 4.1 Executive Committee .......................................-16-
Section 4.2 Other Committees ..........................................-17-
Section 4.3 Term.......................................................-17-
Section 4.4 Committee Changes; Removal ................................-17-
Section 4.5 Alternate Members .........................................-17-
Section 4.6 Rules and Procedures ......................................-17-
Section 4.7 Presumption of Assent .....................................-18-
Section 4.8 Resignations ..............................................-18-
Section 4.9 Vacancies .................................................-18-
Section 4.10 Telephone Meetings .......................................-18-
Section 4.11 Action Without Meeting ...................................-18-
Section 4.12 Limitations on Authority .................................-19-
ARTICLE V
OFFICERS ..............................................................-19-
Section 5.1 Number and Title ..........................................-19-
Section 5.2 Term of Office; Vacancies .................................-19-
Section 5.3 Removal of Elected Officers ...............................-19-
Section 5.4 Resignations ..............................................-19-
Section 5.5 The Chairman of the Board .................................-20-
Section 5.6 Chief Executive Officer ...................................-20-
Section 5.7 President .................................................-20-
Section 5.8 Vice Presidents ...........................................-21-
Section 5.9 Secretary .................................................-21-
Section 5.10 Assistant Secretaries ....................................-22-
Section 5.11 Treasurer ................................................-22-
Section 5.12 Assistant Treasurers .....................................-22-
Section 5.13 Controller ...............................................-22-
Section 5.14 Subordinate Officers .....................................-23-
Section 5.15 Salaries and Compensation ................................-23-
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ARTICLE VI
INDEMNIFICATION .......................................................-23-
Section 6.1 Indemnification of Directors and Officers .................-23-
Section 6.2 Survival ..................................................-25-
Section 6.3 Amendment .................................................-25-
Section 6.4 Definitions ...............................................-26-
ARTICLE VII
CAPITAL STOCK .........................................................-26-
Section 7.1 Certificates of Stock .....................................-26-
Section 7.2 Legends ...................................................-27-
Section 7.3 Lost Certificates .........................................-27-
Section 7.4 Transfer Regulations ......................................-27-
Section 7.5 Fixing Date for Determination of
Stockholders of Record for Certain Purposes ...............-27-
Section 7.6 Dividends .................................................-28-
Section 7.7 Registered Stockholders ...................................-28-
Section 7.8 Transfer of Stock .........................................-28-
ARTICLE VIII
MISCELLANEOUS PROVISIONS ..............................................-28-
Section 8.1 Corporate Seal ............................................-28-
Section 8.2 Fiscal Year ...............................................-28-
Section 8.3 Checks, Drafts, Notes .....................................-29-
Section 8.4 Notice and Waiver of Notice ...............................-29-
Section 8.5 Examination of Books and Records ..........................-29-
Section 8.6 Voting Upon Shares Held by the Corporation ................-29-
Section 8.7 Reserves ..................................................-30-
Section 8.8 Corporate Contracts and Instruments .......................-30-
Section 8.9 Attestation ...............................................-30-
Section 8.10 Invalid Provisions .......................................-30-
Section 8.11 Headings .................................................-30-
Section 8.12 References to Gender/Number ..............................-30-
ARTICLE IX
AMENDMENTS ............................................................-30-
Section 9.1 Amendment .................................................-30-
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ADMINISTAFF, INC.
BYLAWS
ARTICLE I
OFFICES
SECTION 1.1 PRINCIPAL OFFICE. The principal office of the Corporation shall be
in Kingwood, Montgomery County, Texas.
SECTION 1.2 REGISTERED OFFICE. The registered office and registered agent of the
Corporation required to be maintained in the State of Delaware by the General
Corporation Law of the State of Delaware shall be as designated from time to
time by the appropriate filing by the Corporation in the office of the Secretary
of State of the State of Delaware.
SECTION 1.3 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 or as the business of the Corporation may
require.
ARTICLE II
STOCKHOLDERS' MEETINGS
SECTION 2.1 ANNUAL MEETING. The annual meeting of the holders of shares of each
class or series of stock as are entitled to notice thereof and to vote thereat
pursuant to applicable law and the Certificate of Incorporation for the purpose
of electing directors and transacting such other proper business as may come
before it shall be held each calendar year. Each annual meeting shall be held on
such date (no later than 13 months after the date of the last annual meeting of
Stockholders) as shall be designated by the Board of Directors and stated in the
notice or waivers of notice of such meeting. Furthermore, the annual meeting
shall be held at such time and at such place, within or without the State of
Delaware, as may be designated by the Board of Directors.
SECTION 2.2 SPECIAL MEETINGS. In addition to such special meetings as are
provided by law or the Certificate of Incorporation, special meetings of the
holders of any class or series or of all classes or series of the Corporation's
stock for any purpose or purposes, may be called at any time by the Board of
Directors and may be held on such day, at such time and at such place, within or
without the State of Delaware, as shall be designated by the Board of Directors.
Any person or group of persons who owns, beneficially and of record, not less
than 25 percent of the outstanding shares of common stock, par value $0.01 per
share, of the Corporation may call a special meeting for any proper purpose, by
notice delivered to the Secretary setting forth the action(s) proposed to be
taken at such special meeting. Except as provided in the immediately preceding
sentence, stockholders of the Corporation may not call a special meeting.
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SECTION 2.3 NOTICE OF MEETINGS AND ADJOURNED MEETINGS. Except as otherwise
provided by law, written notice of any meeting of Stockholders shall be given
either by personal delivery or by mail to each Stockholder of record entitled to
vote thereat. Notice of each meeting shall be in such form as is approved by the
Board of Directors and shall state the date, place and hour of the meeting, and,
in the case of a special meeting, the purpose or purposes for which the meeting
is called. If the Corporation's books or stock transfer records do not contain
an address for any Stockholder, notice to such Stockholder shall be deemed to
have been given if sent by first-class mail or telecommunication to the
Corporation's principal executive office or if published at least once in a
newspaper of general circulation in the county where such principal executive
office is located. If any notice addressed to a Stockholder at the address of
such stockholder appearing on the books or stock transfer records of the
Corporation is returned to the Corporation because the postal service is unable
to deliver such notice to the address marked thereon, all further notices to
such Stockholder at such address shall be deemed to have been duly given without
further mailing if the same shall be available to such stockholder upon written
demand of such stockholder at the principal executive office of the corporation
for a period of one year from the date of the giving of such notice. Unless
otherwise provided by law, such written notice shall be given not less than 10
nor more than 60 days before the date of the meeting. Except when a Stockholder
attends a meeting for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business on the grounds that the meeting is
not lawfully called or convened, presence in person or by proxy of a Stockholder
shall constitute a waiver of notice of such meeting. Further, a written waiver
of any notice required by law or by these Bylaws, signed by the person entitled
to notice, whether before or after the time stated therein, shall be deemed
equivalent to notice. Except as otherwise provided by law, the business that may
be transacted at any such meeting shall be limited to and consist of the purpose
or purposes stated in such notice. If a meeting is adjourned to another time or
place, notice need not be given of the adjourned meeting if the time and place
thereof are announced at the meeting at which the adjournment is taken;
provided, however, that 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 of record entitled
to vote at the meeting.
SECTION 2.4 VOTING LISTS. The officer or agent having charge of the stock
transfer books for shares of the Corporation shall make, at least 10 days before
each meeting of the Stockholders, a complete list of Stockholders entitled to
vote at such meeting or any adjournment thereof, arranged in alphabetical order,
with the address of each and the number of shares held by each, which list, for
a period of 10 days prior to such meeting, shall be kept on file 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, and such list shall be subject to inspection by
the Stockholders at any time during usual business hours. Such list shall also
be produced and kept open at the time and place of the meeting and shall be
subject to the inspection of any Stockholder for the duration of the meeting.
The original stock transfer books shall be prima-facie evidence as to who are
the Stockholders entitled to examine such list or transfer books or to vote at
any meeting of Stockholders.
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SECTION 2.5 QUORUM. Except as otherwise provided by law or by the Certificate of
Incorporation, the holders of a majority of the Corporation's stock issued and
outstanding and entitled to vote at a meeting, present in person or represented
by proxy, without regard to class or series, shall constitute a quorum at all
meetings of the Stockholders for the transaction of business. If a quorum is
present at any meeting of Stockholders, such quorum shall be deemed continuously
present throughout such meeting notwithstanding the withdrawal of Stockholders
sufficient to leave less than a quorum and the remaining Stockholders may
continue to transact business until adjournment. If, however, such quorum shall
not be present or represented at any meeting of the Stockholders, the holders of
a majority of such shares of stock, present in person or represented by proxy,
may adjourn any meeting from time to time without notice other than announcement
at the meeting, except as otherwise required by these Bylaws, until a quorum
shall be present or represented or, if no Stockholder entitled to vote is
present at such meeting, the chairman of such meeting or any officer of the
Corporation may adjourn such meeting from time to time until a quorum shall be
present. Notwithstanding anything in these Bylaws to the contrary, the chairman
of any meeting of Stockholders shall have the right, acting in his sole
discretion, to adjourn such meeting at any time and from time to time. At any
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 called.
SECTION 2.6 ADJOURNED MEETINGS. When a meeting of Stockholders is adjourned to
another time or place, unless otherwise provided by these Bylaws, notice need
not be given of the adjourned meeting if the time and place thereof are
announced at the meeting at which the adjournment is taken; provided, however,
that if an adjournment is for more than 30 days or if, after an 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 thereat. At any
adjourned meeting at which a quorum shall be present in person or by proxy, the
Stockholders entitled to vote thereat may transact any business which might have
been transacted at the meeting as originally noticed.
SECTION 2.7 ORGANIZATION; AGENDA. Meetings of the Stockholders shall be presided
over by the Chairman of the Board of Directors, if one shall be elected, or in
his absence, by the President or by any Vice President, or, in the absence of
any of such officers, by a chairman to be chosen by a majority of the
Stockholders entitled to vote at the meeting who are present in person or by
proxy. The Secretary, or, in his absence, any Assistant Secretary or any person
appointed by the individual presiding over the meeting, shall act as secretary
at meetings of the Stockholders.
SECTION 2.8 VOTING. (a) Each Stockholder of record, as determined pursuant to
Section 2.14, who is entitled to vote in accordance with the terms of the
Certificate of Incorporation and in accordance with the provisions of these
Bylaws, shall, except to the extent specified in the Certificate of
Incorporation or any resolution adopted by the Board of Directors to establish
any series of Preferred Stock of the Corporation, be entitled to one vote, in
person or by proxy, for each share of stock registered in his name on the books
of the Corporation.
(b) No stockholder shall have any right of cumulative voting.
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(c) A holder of a share shall be treated as being present at a meeting
if the holder of such share is (i) present in person at the meeting or (ii)
represented at the meeting by a valid proxy, whether the instrument granting
such proxy is marked as casting a vote or abstaining, is left blank or does not
empower such proxy to vote with respect to some or all matters to be voted upon
at the meeting.
(d) If a quorum is determined to exist at a meeting, action on a matter
(other than the election of directors and except as specified in the final
sentence of this Section 2.8(d)) shall be approved if the votes cast in favor of
the matter exceed the votes cast opposing the matter. Directors of the
Corporation shall be elected by a plurality of the votes cast. In determining
the number of votes cast, shares abstaining from voting or not voted on a matter
will not be treated as votes cast. The provisions of this paragraph will govern
with respect to all votes of stockholders except as otherwise provided for in
the General Corporation Law of the State of Delaware (the "DGCL"), the
Certificate of Incorporation or these Bylaws.
SECTION 2.9 SHARES HELD OR CONTROLLED BY THE CORPORATION. Shares of the
Corporation's capital stock that are owned by the Corporation or by another
corporation of which a majority of such corporation's shares entitled to vote in
the election of directors of such corporation is held, directly or indirectly,
by the Corporation shall neither be entitled to vote nor counted for purposes of
determining if a quorum is present at a meeting of the Corporation's
stockholders.
SECTION 2.10 VOTING BY CERTAIN PERSONS OR ENTITIES. Shares of the Corporation's
capital stock held in the name of another corporation (whether domestic or
foreign) may be voted by such officer, agent or proxy as the bylaws of such
other corporation may prescribe or, in the absence of such provision, as the
board of directors of such other corporation may determine. Shares held in the
name of a deceased person may be voted by the executor or administrator of such
deceased person, either in person or by proxy. Shares held in the name of a
guardian, conservator or trustee may be voted by such fiduciary, either in
person or by proxy, but no fiduciary shall be entitled to vote shares held in
such fiduciary capacity without a transfer of such shares into the name of such
fiduciary. Shares held in the name of a receiver may be voted by such receiver.
A stockholder whose shares are pledged shall be entitled to vote such shares,
unless in the transfer by the pledgor on the books of the Corporation he has
expressly empowered the pledgee to vote thereon, in which case only the pledgee
(or his proxy) may represent the stock and vote thereon.
SECTION 2.11 VOTING OF SHARES SUBJECT TO JOINT POWER. If shares of the
Corporation's capital stock are held of record in the name of two or more
persons (whether fiduciaries, partners, joint tenants, tenants in common,
tenants by the entirety or otherwise) or if two or more persons have the same
fiduciary relationship respecting the same shares, unless the Secretary is given
written notice to the contrary and is furnished with a copy of the instrument or
order appointing them or creating the relationship wherein it is so provided,
their acts with respect to voting shall have the following effect:
(i) if only one such person votes the shares, such person's
act binds all persons in whose name such shares are held;
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(ii) if more than one such person votes the shares, the act of
the majority so voting binds all persons in whose name such shares are held; and
(iii) if more than one such person votes the shares but the
vote is evenly split on any particular matter, each faction may vote the
securities in question proportionately or any person voting the shares or a
beneficiary (if any) may apply to the Delaware Court of Chancery or such other
court as may have jurisdiction to appoint an additional person to act with the
person so voting the shares, which shall then be voted as determined by a
majority of such persons and the person so appointed by the court.
SECTION 2.12 PROXIES. Every Stockholder entitled to vote at any Stockholders'
meeting may authorize another person or persons to act for him by proxy duly
appointed by instrument in writing subscribed by such Stockholder and executed
not more than three years prior to the meeting, 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 so long as, it is coupled with an interest
sufficient in law to support an irrevocable power. A Stockholder's attendance at
any meeting, when such Stockholder has theretofore given a proxy, shall not have
the effect of revoking such proxy unless such Stockholder shall in writing so
notify the Secretary of the meeting prior to the voting of the proxy. Unless
otherwise provided by law, no vote on the election of directors or any question
brought before the meeting need be by ballot unless the chairman of the meeting
shall determine that it shall be by ballot or the holders of a majority of the
shares of stock present in person or by proxy and entitled to participate in
such vote shall so demand. In a vote by ballot, each ballot shall state the
number of shares voted and the name of the Stockholder or proxy voting. Except
as otherwise provided by law, by the Certificate of Incorporation or these
Bylaws, all elections of directors and all other matters before the Stockholders
shall be decided by the vote of the holders of a majority of the shares of stock
present in person or by proxy at the meeting and entitled to vote in the
election or on the question. In the election of directors, votes may not be
cumulated.
SECTION 2.13 AUTHORIZATION OF PROXIES. Without limiting the manner in which a
Stockholder may authorize another person or persons to act for him as proxy, the
following are valid means of granting such authority. A Stockholder may execute
a writing authorizing another person or persons to act for him as proxy.
Execution may be accomplished by the Stockholder or his authorized officer,
director, employee or agent signing such writing or causing his or her signature
to be affixed to such writing by any reasonable means including, but not limited
to, by facsimile signature. A Stockholder may also authorize another person or
persons to act for him as proxy by transmitting or authorizing the transmission
of a telegram, cablegram or other means of electronic transmission to the person
who will be the holder of the proxy or to a proxy solicitation firm, proxy
support service organization or like agent duly authorized by the person who
will be the holder of the proxy to receive such transmission, provided that any
such telegram, cablegram or other means of electronic transmission must either
set forth or be submitted with information from which it can be determined that
the telegram, cablegram or other electronic transmission was authorized by the
Stockholder. If it is determined that such telegrams, cablegrams or other
electronic transmissions are valid, the inspectors or, if there are no
inspectors, such other persons making that determination shall specify the
information upon
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which they relied. Any copy, facsimile telecommunication or other reliable
reproduction of the writing or transmission created pursuant to this section may
be substituted or used in lieu of the original writing or transmission for any
and all purposes for which the writing or transmission could be used, provided
that such copy, facsimile telecommunication or other reproduction shall be a
complete reproduction of the entire original writing or transmission.
SECTION 2.14 STOCKHOLDERS ENTITLED TO VOTE. The Board of Directors may fix a
date not more than 60 days nor less than 10 days prior to the date of any
meeting of Stockholders as a record date for the determination of the
Stockholders entitled to notice of and to vote at such meeting and any
adjournment thereof, and in such case such Stockholders and only such
Stockholders as shall be Stockholders of record on the date so fixed shall be
entitled to notice of and to vote at, such meeting and any adjournment thereof
notwithstanding any transfer of any stock on the books of the Corporation after
such record date fixed as aforesaid.
SECTION 2.15 ORDER OF BUSINESS. The order of business at each meeting of
Stockholders shall be as determined by the chairman of the meeting. In addition,
subject to the DGCL, the Certificate of Incorporation and these Bylaws, the
chairman of the meeting may establish such regulations for the manner of voting
and the conduct of discussion at any meetings of the Corporation's Stockholders
as such chairman determines to be necessary or appropriate. In advance of any
meeting of the Corporation's Stockholders, the Corporation's Board of Directors
may adopt an agenda for such meeting, adherence to which the chairman of the
meeting may enforce.
SECTION 2.16 INSPECTORS OF ELECTION. (a) Before any meeting of Stockholders, the
Board of Directors may, and if required by law shall, appoint one or more
persons to act as inspectors of election at such meeting or any adjournment
thereof. If any person appointed as inspector fails to appear or fails or
refuses to act, the chairman of the meeting may, and if required by law or
requested by any Stockholder entitled to vote or his proxy shall, appoint a
substitute inspector. If no inspectors are appointed by the Board of Directors,
the chairman of the meeting may, and if required by law or requested by any
Stockholder entitled to vote or his proxy shall, appoint one or more inspectors
at the meeting. Notwithstanding the foregoing, inspectors shall be appointed
consistent with Section 231 of the DGCL.
(b) Inspectors may include individuals who serve the Corporation in
other capacities (including as officers, employees, agents or representatives);
provided, however, that no director or candidate for the office of director
shall act as an inspector. Inspectors need not be Stockholders.
(c) The inspectors shall (i) determine the number of shares of capital
stock of the Corporation outstanding and the voting power of each, the number of
shares represented at the meeting, the existence of a quorum and the validity
and effect of proxies and ballots, (ii) certify their determination of the
number of shares represented at the meeting and their count of all votes and
ballots and (iii) receive votes or ballots, hear and determine all challenges
and questions arising in connection with the right to vote, count and tabulate
all votes and ballots, determine the results and perform such acts as are proper
to conduct the election or vote with fairness to all
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Stockholders. On request of the chairman of the meeting, the inspectors shall
make a report in writing of any challenge, request or matter determined by them
and shall execute a certificate of any fact found by them. The inspectors shall
have such other duties as may be prescribed by Section 231 of the DGCL
SECTION 2.17 ACTION BY WRITTEN CONSENT. No action required or permitted to be
taken by the Stockholders shall be taken except at an annual or special meeting
with prior notice and a vote. No action may be taken by the Stockholders by
written consent.
SECTION 2.18 NOTICE OF STOCKHOLDER NOMINEES. Only persons who are nominated in
accordance with the procedures set forth in this Section 2.18 shall be eligible
for election as directors of the Corporation. Nominations of persons for
election to the Board of Directors of the Corporation may be made at a meeting
of the Corporation's Stockholders (a) by or at the direction of the Board of
Directors or (b) by any Stockholder of the Corporation entitled to vote for the
election of directors at such meeting who complies with the procedures set forth
in this Section 2.18. All nominations by Stockholders shall be made pursuant to
timely notice in proper written form submitted to the Secretary of the
Corporation. To be timely, a Stockholders' notice shall be delivered to or
mailed and received at the principal executive offices of the Corporation not
less than 120 days nor more than 150 days in advance of the first anniversary of
the date of the Corporation's proxy statement released to Stockholders in
connection with the previous year's annual meeting of Stockholders; provided,
however, that if no annual meeting was held in the previous year or the date of
the annual meeting of Stockholders has been changed by more than 30 calendar
days from the date contemplated at the time of mailing of the preceding year's
proxy statement, the notice must be received by the Corporation at least 90 days
prior to the date the Corporation intends to distribute its proxy statement with
respect to such meeting. To be in proper written form, such Stockholder's notice
to the Secretary shall set forth in writing (a) as to each person whom such
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, without limitation, such person's written consent to
being named in the proxy statement as a nominee and to serving as a director if
elected; and (b) as to such Stockholder (i) the name and address, as they appear
on the Corporation's books, of such Stockholder, (ii) the class and number of
shares of the Corporation's capital stock that are beneficially owned by such
Stockholder and (iii) a description of all agreements, arrangements or
understandings between such Stockholder and each such person that such
Stockholder proposes to nominate as a director and any other person or persons
(naming such person or persons) pursuant to which the nomination or nominations
are to be made by such Stockholder. 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 for election as a director unless nominated in
accordance with the procedures set forth in these Bylaws of the Company. The
chairman of the Stockholder's meeting shall, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with the
procedures prescribed by these Bylaws of the
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Company, and if he shall so determine, he shall announce such determination to
the meeting and the defective nomination shall be disregarded.
SECTION 2.19 STOCKHOLDER PROPOSALS. At any special meeting of the Corporation's
Stockholders, only such business shall be conducted as shall have been brought
before the meeting by or at the direction of the Board of Directors, and, in the
case of a special meeting of Stockholders called by a Stockholder or
Stockholders in accordance with the second sentence of Section 2.2 of these
Bylaws, as may be specified in the notice delivered to the Secretary to call
such special meeting. At any annual meeting of the stockholders, only such
business shall be conducted as shall have been brought before the meeting (a) by
or at the direction of the Board of Directors or (b) by any Stockholder who
complies with the procedures set forth in this Section 2.19. For business
properly to be brought before an annual meeting by a stockholder, the
stockholder must have given timely notice thereof in proper written form to the
Secretary of the Corporation. To be timely, a Stockholder's notice must be
delivered to or mailed and received at the principal executive offices of the
Corporation not less than 120 days nor more than 150 days in advance of the
first anniversary of the date of the Corporation's proxy statement released to
Stockholders in connection with the previous year's annual meeting of
Stockholders; provided, however, that if no annual meeting was held in the
previous year or the date of the annual meeting of Stockholders has been changed
by more than 30 calendar days from the date contemplated at the time of mailing
of the preceding year's proxy statement, the notice must be received by the
Corporation at least 90 days prior to the date the Corporation intends to
distribute its proxy statement with respect to such meeting. To be in proper
written form, such Stockholder's notice to the Secretary shall set forth in
writing as to each matter such Stockholder 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
such Stockholder, (c) the class and number of shares of the Corporation's stock
which are beneficially owned by such Stockholder and (d) any material interest
of such Stockholder in such business. Notwithstanding anything in these Bylaws
to the contrary, no business shall be conducted at an annual meeting except in
accordance with the procedures set forth in this Section 2.19. The chairman of
an annual stockholder's meeting 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 Section 2.19, and, if he should so
determine, he shall so announce such determination to the meeting and any such
business not properly brought before the meeting shall not be transacted.
ARTICLE III
DIRECTORS
SECTION 3.1 MANAGEMENT. The property, affairs and business of the Corporation
shall be managed by or under the direction of the Board of Directors which may
exercise all powers of the Corporation and do all lawful acts and things as are
not by law, by the Certificate of Incorporation or by these Bylaws directed or
required to be exercised or done by the Stockholders.
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SECTION 3.2 NUMBER AND TERM. The number of directors may be fixed from time to
time by resolution of the Board of Directors adopted by the affirmative vote of
a majority of the members of the entire Board of Directors, but shall consist of
not less than three nor more than 15 members, one-third of whom shall be elected
each year by the Stockholders except as provided in Section 3.5. Directors need
not be Stockholders. No decrease in the number of directors shall have the
effect of shortening the term of office of any incumbent director. The directors
need not be stockholders nor residents of the State of Delaware. Each director
must have attained 21 years of age.
SECTION 3.3 NOMINATIONS. (a) Notwithstanding anything in these Bylaws to the
contrary, only persons who are nominated in accordance with the procedures
hereinafter set forth in this Section 3.3 or Sections 2.18 or 3.5 shall be
eligible for election as directors of the Corporation.
(b) Each notice given by a Stockholder as contemplated by Section 2.18
shall set forth the information required by Section 2.18, in addition to any
other information or matters required by the Certificate of Incorporation. The
right of a Stockholder to nominate a person for election or reelection to the
Board of Directors shall be subject to such conditions, restrictions and
limitations as may be imposed by the Certificate of Incorporation.
SECTION 3.4 QUORUM AND MANNER OF ACTION. At all meetings of the Board of
Directors a majority of the total number of directors holding office 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
law, by the Certificate of Incorporation or by these Bylaws. When the Board of
Directors consists of one director, the one director shall constitute a majority
and a quorum. A meeting of the Board of Directors at which a quorum is initially
present may continue to transact business notwithstanding the withdrawal of
directors; provided, however, that no action of the remaining directors shall
constitute the act of the Board of Directors unless the action is approved by at
least a majority of the required quorum for the meeting or such greater number
of directors as shall be required by applicable law, by the Certificate of
Incorporation or by these Bylaws. If at any meeting of the Board of Directors
there shall be less than a quorum present, a majority of those present may
adjourn the meeting from time to time until a quorum is obtained, and no further
notice thereof need be given other than by announcement at such adjourned
meeting. The act of a majority of the directors present at any meeting of the
Board of Directors at which there is a quorum shall be the act of the Board of
Directors unless by express provision of law, the Certificate of Incorporation
or these Bylaws a different vote is required, in which case such express
provision shall govern and control. Attendance by a director at a meeting shall
constitute a waiver of notice of such meeting except where a director attends a
meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business on the ground that the meeting is not
lawfully called or convened.
SECTION 3.5 VACANCIES. Except as otherwise provided by law and the Certificate
of Incorporation:
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(a) in case any vacancy shall occur on the Board of Directors because
of death, resignation or removal, such vacancy may be filled by a majority of
the directors remaining in office (though less than a quorum), and the director
so appointed shall serve for the unexpired term of his predecessor or until his
successor is elected and qualified or until his earlier death, resignation or
removal. If there are no directors then in office, an election of directors may
be held in the manner provided by applicable law.
(b) any newly-created directorship resulting from any increase in the
number of directors constituting the whole Board of Directors may be filled by a
majority of the directors then in office (though less than a quorum), and the
director so appointed shall be assigned to such class of directors as such
majority directors shall determine. Each director so appointed shall hold office
for the remaining term of the class to which he is assigned and until his
successor is elected and qualified or until his earlier death, resignation or
removal.
(c) except as expressly provided in the DGCL, the Certificate of
Incorporation or these Bylaws, Stockholders shall not have any right to fill
vacancies on the Board of Directors, including newly-created directorships.
(d) if, as a result of a disaster or emergency (as determined in good
faith by the then remaining directors), it becomes impossible to ascertain
whether or not vacancies exist on the Board of Directors and a person is or
persons are elected by the directors, who in good faith believe themselves to be
a majority of the remaining directors, to fill a vacancy or vacancies that such
remaining directors in good faith believe exists, then the acts of such person
or persons who are so elected as directors shall be valid and binding upon the
Corporation and the Stockholders, although it may subsequently develop that at
the time of the election (i) there was in fact no vacancy or vacancies existing
on the Board of Directors or (ii) the directors who so elected such person or
persons did not in fact constitute a majority of the remaining directors.
SECTION 3.6 SUBJECT TO RIGHTS OF HOLDERS OF PREFERRED STOCK. Notwithstanding the
foregoing provisions of this Article III, if the resolutions of the Board of
Directors creating any class or series of preferred stock of the Corporation
entitle the holders of such preferred stock, voting separately by class or
series, to elect additional directors under specified circumstances, then all
provisions of such resolutions relating to the nomination, election, term of
office, removal, filling of vacancies and other features of such directorships
shall, as to such directorships, govern and control over any conflicting
provisions of this Article III, and such directors so elected need not be
divided into classes pursuant to this Article III unless expressly provided by
the provisions of such resolutions.
SECTION 3.7 RESIGNATIONS. A director may resign at any time upon written notice
of resignation to the Corporation, delivered to the Secretary. Any resignation
shall be effective immediately unless a certain effective date is specified
therein, in which event it will be effective upon such date and acceptance of
any resignation shall not be necessary to make it effective if an effective time
is specified therein.
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SECTION 3.8 REMOVALS. Any director or the entire Board of Directors may be
removed only by vote of the Stockholders and only for cause, and another person
or persons may be elected to serve for the remainder of his or their term, by
the holders of a majority of the shares of the Corporation entitled to vote in
the election of directors. Stockholders may not remove any director without
cause. In case any vacancy so created shall not be filled by the Stockholders at
such meeting, such vacancy may be filled by the directors as provided in Section
3.5.
SECTION 3.9 ANNUAL MEETINGS. The annual meeting of the Board of Directors shall
be held, if a quorum be present, immediately following each annual meeting of
the Stockholders at the place such meeting of Stockholders took place, for the
purpose of organization and transaction of any other business that might be
transacted at a regular meeting thereof, and no notice of such meeting shall be
necessary. If a quorum is not present, such annual meeting may be held at any
other time or place that may be specified in a notice given in the manner
provided in Section 3.11 for special meetings of the Board of Directors or in a
waiver of notice thereof.
SECTION 3.10 REGULAR MEETINGS. Regular meetings of the Board of Directors may be
held without notice at such time and place, within or without the State of
Delaware, as shall from time to time be determined by the Board of Directors.
Except as otherwise provided by applicable law, any business may be transacted
at any regular meeting of the Board of Directors.
SECTION 3.11 SPECIAL MEETINGS. Special meetings of the Board of Directors may be
called by the President or by the Secretary on the written request of one-third
of the members of the whole Board of Directors stating the purpose or purposes
of such meeting. Notices of special meetings, if mailed, shall be mailed to each
director not later than two days before the day the meeting is to be held or if
otherwise given in the manner permitted by the Bylaws, not later than the day
before such meeting. Neither the business to be transacted at, nor the purpose
of, any special meeting need be specified in any notice or written waiver of
notice unless so required by the Certificate of Incorporation or by the Bylaws
and unless limited by law, the Certificate of Incorporation or by these Bylaws,
any and all business may be transacted at a special meeting.
SECTION 3.12 ORGANIZATION OF MEETINGS. At any meeting of the Board of Directors,
business shall be transacted in such order and manner as such Board of Directors
may from time to time determine, and all matters shall be determined by the vote
of a majority of the directors present at any meeting at which there is a
quorum, except as otherwise provided by these Bylaws or required by law. The
Board of Directors shall cause regular minutes of its proceedings to be kept and
shall cause same to be placed in the minute book of the Corporation.
SECTION 3.13 PRESUMPTION OF ASSENT. A director who is present at a meeting of
the Board of Directors at which action on any matter is taken shall be presumed
to have assented to such action unless his dissent shall be entered in the
minutes of the meeting or unless he shall file his written dissent to such
action with the person acting as secretary of the meeting before the adjournment
thereof or shall forward any dissent by certified or registered mail to the
Secretary immediately after the adjournment of the meeting. Such right to
dissent shall not apply to any director who voted in favor of such action.
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SECTION 3.14 PLACE OF MEETINGS. The Board of Directors may hold their meetings
and have one or more offices, and keep the books of the Corporation, within or
without the State of Delaware, at any office or offices of the Corporation, or
at any other place as they may from time to time by resolution determine.
SECTION 3.15 COMPENSATION OF DIRECTORS. The Board of Directors shall have the
authority to fix, and from time to time to change, the compensation of
directors. Each director shall be entitled to reimbursement from the corporation
for his reasonable expenses incurred in attending meetings of the Board of
Directors (or any committee thereof) and meetings of the Stockholders. Nothing
contained in these Bylaws shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor.
SECTION 3.16 ACTION BY UNANIMOUS WRITTEN CONSENT. Unless otherwise restricted by
the DGCL, the Certificate of Incorporation or these Bylaws, 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 prior to such action all
members of the Board of Directors 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 of Directors or the committee.
SECTION 3.17 PARTICIPATION IN MEETINGS BY TELEPHONE. Unless otherwise restricted
by the Certificate of Incorporation or these Bylaws, members of the Board of
Directors or of any committee thereof may participate in a meeting of such Board
of Directors or committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other and participation in a meeting in such manner shall
constitute presence in person at such meeting.
ARTICLE IV
COMMITTEES OF THE BOARD
SECTION 4.1 EXECUTIVE COMMITTEE. The Board of Directors may, by resolution or
resolutions passed by a majority of the whole Board of Directors, designate one
or more Directors to constitute an Executive Committee which during the
intervals between meetings of the Board of Directors and subject to Section
4.12, shall have and may exercise, in such manner as it shall deem to be in the
best interests of the Corporation, all the powers of the Board of Directors in
the management of the business and affairs of the Corporation, except in those
cases where the authority of the Board of Directors is specifically denied to
the Executive Committee by the DGCL, the Certificate of Incorporation or these
Bylaws, or as reserved to the Board of Directors, or as delegated by the Board
of Directors to another committee of the Board of Directors, and may authorize
the seal of the Corporation to be affixed to all papers that may require it. The
Executive Committee shall consist of not less than two directors, the exact
number to be determined from time to time by the affirmative vote of a majority
of the whole Board of Directors. None of the members of the Executive Committee
need be an officer of the Corporation. Meetings of the Executive Committee may
be called at any time by the Chairman of the Board on not less than one day's
notice to each member given orally or in writing, which
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notice shall specify the time, place and purpose of the meeting. The designation
of an Executive Committee or other committee and the delegation thereto of
authority shall not operate to relieve the Board of Directors, or any member
thereof, of any responsibility imposed upon it or him by law.
SECTION 4.2 OTHER COMMITTEES. The Board of Directors may, by resolution adopted
by a majority of the whole Board of Directors, establish additional standing or
special committees of the Board of Directors, each of which shall consist of one
or more directors (the exact number to be determined from time to time by the
Board of Directors) and, subject to Section 4.12, shall have such powers and
functions as may be delegated to it by the Board of Directors. No member of any
additional committee need be an officer of the Corporation.
SECTION 4.3 TERM. Each member of a committee of the Board of Directors shall
serve as such until the earliest of (i) his death, (ii) the expiration of his
term as a director, (iii) his resignation as a member of such committee or as a
director and (iv) his removal as a member of such committee or as a director.
SECTION 4.4 COMMITTEE CHANGES; REMOVAL. The Board of Directors shall have the
power at any time to fill vacancies in, to change the membership of and to
abolish any committee of the Board of Directors; provided, however, that no such
action shall be taken in respect of the Executive Committee unless approved by a
majority of the whole Board of Directors.
SECTION 4.5 ALTERNATE MEMBERS. 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. If no alternate members
have been so appointed or each such alternate committee member is absent or
disqualified, the committee member or members thereof present at any meeting and
not disqualified from voting, whether or not he 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 absent or disqualified member.
SECTION 4.6 RULES AND PROCEDURES. (a) The Board of Directors may, by resolution
adopted by a majority of the whole Board of Directors, designate one member of
each committee as chairman of such committee. If a chairman is not so designated
for any committee, the members thereof shall designate a chairman.
(b) Each committee may adopt its own rules (not inconsistent with these
Bylaws or with any specific direction as to the conduct of its affairs as shall
have been given by the Board of Directors) governing the time, place and method
of holding its meetings and the conduct of its proceedings and shall meet as
provided by such rules.
(c) If a committee is comprised of an odd number of members, a quorum
shall consist of a majority of that number. If a committee is comprised of an
even number of members, a quorum shall consist of one-half of that number. If a
committee is comprised of two members, a quorum shall consist of both members.
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(d) Each committee shall keep regular minutes of its meetings and
report the same to the Board of Directors when requested.
(e) Unless otherwise provided by these Bylaws or by the rules adopted
by any committee, notice of the time and place of each meeting of such committee
shall be given to each member of such committee as provided in these Bylaws with
respect to notices of special meetings of the Board of Directors.
SECTION 4.7 PRESUMPTION OF ASSENT. A member of a committee of the Board of
Directors who is present at a meeting of such committee at which action on any
matter is taken shall be presumed to have assented to such action unless his
dissent shall be entered in the minutes of the meeting or unless he shall file
his written dissent to such action with the person acting as secretary of the
meeting before the adjournment thereof or shall forward any dissent by certified
or registered mail to the Secretary of the Corporation immediately after the
adjournment of the meeting. Such right to dissent shall not apply to any member
who voted in favor of such action.
SECTION 4.8 RESIGNATIONS. Any committee member may resign at any time by giving
written notice to the Board of Directors or the Secretary. Such resignation
shall take effect at the date of receipt of such notice or at any later time
specified therein. Acceptance of such resignation shall not be necessary to make
it effective if an effective time is specified therein.
SECTION 4.9 VACANCIES. The Board of Directors may designate one or more of its
members as alternate members of any committee who may replace any absent or
disqualified member at any meeting of such committee. If no alternate members
have been appointed, the committee member or members thereof present at any
meeting and not disqualified from voting, whether or not he 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 absent or disqualified member. The Board of
Directors shall have the power at any time to fill vacancies in, to change the
membership of, and to dissolve, any committee.
SECTION 4.10 TELEPHONE MEETINGS. Members of any committee designated by the
Board of Directors may participate in or hold a meeting by use of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other. Participation in a meeting
pursuant to this Section 4.10 shall constitute presence in person at such
meeting, except where a person participates in the meeting for the express
purpose of objecting, at the beginning of the meeting, to the transaction of any
business on the ground that the meeting is not lawfully called or convened.
SECTION 4.11 ACTION WITHOUT MEETING. Any action required or permitted to be
taken at a meeting of any committee designated by the Board of Directors may be
taken without a meeting if a consent in writing, setting forth the action so
taken, is signed by all the members of the committee and filed with the minutes
of the committee proceedings. Such consent shall have the same force and effect
as a unanimous vote at a meeting.
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SECTION 4.12 LIMITATIONS ON AUTHORITY. Unless otherwise provided in the DGCL or
the Certificate of Incorporation, any committee of the Board of Directors, to
the extent provided in the resolution or resolutions establishing such
committee, shall have and may exercise all the powers and authority of the Board
of Directors in the management of the Corporation's business and affairs, but no
such committee shall have the power or authority to (i) approve or adopt, or
recommend to the Stockholders, any action or matter expressly required by the
DGCL to be submitted to the Stockholders for approval or (ii) adopt, amend or
repeal any Bylaws.
ARTICLE V
OFFICERS
SECTION 5.1 NUMBER AND TITLE. (a) The elected officers of the Corporation shall
be chosen by the Board of Directors and shall be a President, a Vice President,
a Secretary and a Treasurer. The Board of Directors may also choose a Chairman
of the Board, who must be a member of the Board of Directors, a Chief Executive
Officer, and additional Vice Presidents (including one or more Senior Vice
Presidents and one or more Executive Vice Presidents), Assistant Secretaries
and/or Assistant Treasurers and a Controller. One person may hold any two or
more of these offices, but no officer shall execute any instrument in more than
one capacity if such instrument is required by law or any act of the Corporation
to be executed or countersigned by two or more officers. None of the officers
need be a Stockholder or a resident of the State of Delaware. No officer (other
than the Chairman of the Board, if any) need be a director.
(b) The Board of Directors may delegate to the Chairman of the Board
(if any) and/or the Chief Executive Officer the power to appoint one or more
employees of the Corporation as divisional or departmental vice presidents and
fix their duties as such appointees. However, no such divisional or departmental
vice presidents shall be considered an officer of the Corporation, the officers
of the Corporation being limited to those officers elected by the Board of
Directors.
SECTION 5.2 TERM OF OFFICE; VACANCIES. So far as is practicable, all elected
officers shall be elected by the Board of Directors at the annual meeting of the
Board of Directors in each year, and except as otherwise provided in this
Article V, shall hold office until the next such meeting of the Board of
Directors in the subsequent year and until their respective successors are
elected and qualified or until their earlier resignation or removal. All
appointed officers shall hold office at the pleasure of the Board of Directors.
If any vacancy shall occur in any office, the Board of Directors may elect or
appoint a successor to fill such vacancy for the remainder of the term.
SECTION 5.3 REMOVAL OF ELECTED OFFICERS. Any elected officer may be removed at
any time, with or without cause, by affirmative vote of a majority of the whole
Board of Directors, at any regular meeting or at any special meeting called for
such purpose.
SECTION 5.4 RESIGNATIONS. Any officer may resign at any time upon written notice
of resignation to the President, Secretary or Board of Directors of the
Corporation. Any resignation shall be effective immediately unless a date
certain is specified for it to take effect, in which event it shall be effective
upon such date, and acceptance of any resignation shall not be
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necessary to make it effective, irrespective of whether the resignation is
tendered subject to such acceptance. Any such resignation is without prejudice
to the rights, if any, of the Corporation under any contract to which the
officer may be a party.
SECTION 5.5 THE CHAIRMAN OF THE BOARD. The Chairman of the Board (if any) shall
have all powers and shall perform all duties incident to the office of Chairman
of the Board and such other powers and duties as may be prescribed by the Board
of Directors or these Bylaws. The Chairman of the Board, if present, shall
preside at all meetings of the Board of Directors and of the Stockholders.
SECTION 5.6 CHIEF EXECUTIVE OFFICER. (a) The Chief Executive Officer shall be
the chief executive officer of the Corporation and, subject to the supervision,
direction and control of the Board of Directors and the Chairman of the Board
(if any), shall have general supervision, direction and control of the business
and officers of the Corporation with all such powers as may be reasonably
incident to such responsibilities. The Chief Executive Officer shall implement
the general directives, plans and policies formulated by the Board of Directors
and shall further have such duties, responsibilities and authorities as may be
assigned to him by the Board of Directors. The Chief Executive Officer shall
have the general powers and duties of management usually vested in the chief
executive officer of a corporation.
(b) During the time of any vacancy in the office of Chairman of the
Board or in the event of the absence or disability of the Chairman of the Board,
the Chief Executive Officer shall have the duties and powers of the Chairman of
the Board unless otherwise determined by the Board of Directors. In the absence
of the Chairman of the Board, if one be elected, the Chief Executive Officer
shall preside at meetings of the Stockholders and Board of Directors and shall
be ex officio a member of all standing committees. During the time of any
vacancy in the office of President or in the event of the absence or disability
of the President, the Chief Executive Officer shall have the duties and powers
of the President unless otherwise determined by the Board of Directors. In no
event shall any third party having any dealings with the Corporation be bound to
inquire as to any facts required by the terms of this Section 5.6 for the
exercise by the Chief Executive Officer of the powers of the Chairman of the
Board or the President.
SECTION 5.7 PRESIDENT. (a) The President shall be the chief operating officer of
the Corporation and, subject to the supervision, direction and control of the
Chief Executive Officer and the Board of Directors, shall manage the day-to-day
operations of the Corporation. He shall have the general powers and duties of
management usually vested in the chief operating officer of a corporation and
such other powers and duties as may be assigned to him by the Board of
Directors, the Chief Executive Officer or these Bylaws. The President may sign,
with any other proper officer, certificates for shares of the Corporation and
any deeds, bonds, mortgages, contracts and other documents which the Board of
Directors has authorized to be executed, except where required by law to be
otherwise signed and executed and except where the signing and execution thereof
shall be expressly delegated by the Board of Directors or these Bylaws, to some
other officer or agent of the Corporation. In the absence of the President, his
duties shall be performed and his authority may be exercised by the Chief
Executive Officer or a Vice
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President of the Corporation as may have been designated by the President with
the right reserved to the Board of Directors to designate or supersede any
designation so made.
(b) During the time of any vacancy in the offices of the Chairman of
the Board and Chief Executive Officer or in the event of the absence or
disability of the Chairman of the Board and the Chief Executive Officer, the
President shall have the duties and powers of the Chief Executive Officer unless
otherwise determined by the Board of Directors. In no event shall any third
party having any dealings with the Corporation be bound to inquire as to any
facts required by the terms of this Section 5.7 for the exercise by the
President of the powers of the Chief Executive Officer.
SECTION 5.8 VICE PRESIDENTS. The several Vice Presidents (if any), which may
include one or more persons designated as Senior Vice Presidents and one or more
persons designated as Executive Vice Presidents, shall have such powers and
duties as may be assigned to them by these Bylaws and as may from time to time
be assigned to them by the Board of Directors, the Chief Executive Officer or
President and may sign, with any other proper officer, certificates for shares
of the Corporation. In the absence or disability of the President, the Vice
Presidents, if any, in order of their rank as fixed by the Board of Directors,
or if not ranked, the Vice President designated by the President, shall perform
all the duties of the President as chief operating officer of the Corporation,
and when so acting shall have all the powers of, and be subject to all the
restrictions upon, the President as chief executive officer of the Corporation.
In no event shall any third party having dealings with the Corporation be bound
to inquire as to any facts required by the terms of this Section 5.7 for the
exercise by any Vice President of the powers of the President as chief executive
officer of the Corporation. The Vice Presidents shall have such other powers and
perform such other duties as from time to time may be assigned to them by the
Board of Directors, the Chief Executive Officer or the President.
SECTION 5.9 SECRETARY. (a) The Secretary shall keep or cause to be kept, at the
principal office of the Corporation or such other place as the Board of
Directors may order, a book of minutes of all meetings and actions of the Board
of Directors, committees of the Board of Directors and Stockholders, with the
time and place of holding, whether regular or special, and, if special, how
authorized, the notice thereof given, the names of those present at meetings of
the Board of Directors and committees thereof, the number of shares present or
represented at Stockholders' meetings and the proceedings thereof.
(b) The Secretary shall keep, or cause to be kept, at the principal
office of the Corporation or at the office of the Corporation's transfer agent
or registrar, a share register, or a duplicate share register, showing the names
of all Stockholders and their addresses, the number and classes of shares held
by each, the number and date of certificates issued for the same and the number
and date of cancellation of every certificate surrendered for cancellation.
(c) The Secretary shall give, or cause to be given, notice of all
meetings of the Stockholders and of the Board of Directors required by these
Bylaws or by law to be given, and he shall keep the seal of the Corporation, if
one be adopted, in safe custody, and shall have such
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other powers and perform such other duties as may be prescribed by the Board of
Directors, the Chairman of the Board (if any), the Chief Executive Officer, the
President or these Bylaws.
(d) The Secretary may affix the seal of the Corporation, if one is
adopted, to any instrument contracts of the Corporation requiring same.
SECTION 5.10 ASSISTANT SECRETARIES. Each Assistant Secretary (if any) shall have
such powers and duties as may be assigned to him by the Board of Directors, the
Chairman of the Board (if any), the Chief Executive Officer or the President or
the Secretary. In the absence or disability of the Secretary, the Assistant
Secretary designated by the President (or, in the absence of such designation,
the Assistant Secretary designated by the Secretary) shall perform the duties
and exercise the powers of the Secretary during the period of such absence or
disability. In no event shall any third party having dealings with the
Corporation be bound to inquire as to any facts required by the terms of this
Section 5.10 for the exercise by any Assistant Secretary of the powers of the
Secretary under these Bylaws.
SECTION 5.11 TREASURER. The Treasurer shall have the custody of and be
responsible for the corporate funds and securities, shall keep full and accurate
accounts of receipts and disbursements in the 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. He 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 President 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 and
he shall perform all other duties incident to the position of Treasurer, or as
may be prescribed by the Board of Directors or the President. If required by the
Board of Directors, he 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 5.12 ASSISTANT TREASURERS. Each Assistant Treasurer (if any) shall have
the usual powers and duties pertaining to his office, together with such other
powers and duties as may be assigned to him by the Board of Directors, the Chief
Executive Officer, the President or the Treasurer. In case of the absence or
disability of the Treasurer, the Assistant Treasurer designated by the President
(or, in the absence of such designation, the Assistant Treasurer designated by
the Treasurer) shall perform the duties and exercise the powers of the Treasurer
during the period of such absence or disability. In no event shall any third
party having dealings with the Corporation be bound to inquire as to any facts
required by the terms of this Section 5.12 for the exercise by any Assistant
Treasurer of the powers of the Treasurer under these Bylaws.
SECTION 5.13 CONTROLLER. The Controller (if any) shall be the principal
accounting officer of the Corporation. In addition to his duties as the
principal accounting officer, the Controller shall
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have such other powers and duties as may be assigned to him by the Board of
Directors, the Chief Executive Officer, the President, or the Chief Financial
Officer.
SECTION 5.14 SUBORDINATE OFFICERS. The Board of Directors may (a) appoint such
other subordinate officers and agents as it shall deem necessary who shall hold
their offices for such terms, have such authority and perform such duties as the
Board of Directors may from time to time determine, or (b) delegate to any
committee or officer the power to appoint any such subordinate officers or
agents.
SECTION 5.15 SALARIES AND COMPENSATION. The salary or other compensation of
officers shall be fixed from time to time by the Board of Directors. The Board
of Directors may delegate to any committee or officer the power to fix from time
to time the salary or other compensation of subordinate officers and agents
appointed in accordance with the provisions of Section 5.14.
ARTICLE VI
INDEMNIFICATION
SECTION 6.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS.
(a) The Corporation, to the maximum extent permitted from time to time
under the laws of the State of Delaware (i) shall indemnify any person who was
or is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by
reason of the fact that such person is or was, at any time prior to or during
which this Article VI is in effect, a director or officer of the Corporation, or
is or was, at any time prior to or during which this Article VI is in effect,
serving at the request of the Corporation as a director or officer of another
corporation, partnership, joint venture, trust, other enterprise or employee
benefit plan and (ii) upon a determination by the Board of Directors that
indemnification is appropriate, the Corporation may indemnify any person who was
or is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by
reason of the fact that such person is or was, at any time prior to or during
which this Article VI is in effect, an employee or agent of the Corporation or
at the request of the Corporation was serving as an employee or agent of another
corporation, partnership, joint venture, trust, other enterprise or employee
benefit plan, in the case of (i) and (ii) against reasonable expenses (including
attorneys' fees), judgments, fines, penalties, amounts paid in settlement and
other liabilities actually and reasonably incurred by such person in connection
with such action, suit or proceeding if such person 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 that 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 such 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
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respect to any criminal action or proceeding, had reasonable cause to believe
that his conduct was unlawful.
(b) The Corporation, to the maximum extent permitted from time to time
under the laws of the State of Delaware (i) shall indemnify any person who was
or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that such person is or was, at any
time prior to or during which this Article VI is in effect, a director or
officer of the Corporation, or is or was, at any time prior to or during which
this Article VI is in effect, serving at the request of the Corporation as a
director or officer of another corporation, partnership, joint venture, trust or
other enterprise and (ii) upon a determination by the Board of Directors that
indemnification is appropriate, the Corporation may indemnify any person who was
or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that such person is or was, at any
time prior to or during which this Article VI is in effect, an employee or agent
of the Corporation or at the request of the Corporation was serving as an
employee or agent of another corporation, partnership, joint venture, trust,
other enterprise or employee benefit plan, in the case of (i) and (ii) against
expenses (including attorneys' fees), actually and reasonably incurred by such
person in connection with the defense or settlement of such action or suit if
such person acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the Corporation; provided, that no
indemnification shall be made under this sub-section (b) in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Corporation unless and only to the extent that the Delaware Court
of Chancery, or other court of appropriate jurisdiction, 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 of such expenses which the Delaware Court of Chancery, or other court
of appropriate jurisdiction, shall deem proper.
(c) Any indemnification under sub-sections (a) or (b) (unless ordered
by the Delaware Court of Chancery or other court of appropriate jurisdiction)
shall be made by the Corporation only as authorized in the specific case upon a
determination that indemnification of such person is proper in the circumstances
because he has met the applicable standard of conduct set forth in sub-sections
(a) and (b). Such determination shall be made (1) by the Board of Directors by a
majority vote of a quorum consisting of directors not parties to such action,
suit or proceeding; or (2) if such a quorum is not obtainable, or, even if
obtainable a quorum of disinterested directors so directs, by independent legal
counsel, in written opinion, selected by the Board of Directors; or (3) by the
Stockholders. In the event a determination is made under this sub-section (c)
that the director, officer, employee or agent has met the applicable standard of
conduct as to some matters but not as to others, amounts to be indemnified may
be reasonably prorated.
(d) Expenses incurred by a person who is or was a director or officer
of the Corporation in appearing at, participating in or defending any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, shall be paid by the Corporation at
reasonable intervals in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of the director or
officer to repay such
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amount if it shall ultimately be determined that he is not entitled to be
indemnified by the Corporation as authorized by this Article VI. In addition,
the Corporation shall pay or reimburse expenses incurred by any person who is or
was a director or officer of the Corporation in connection with such person's
appearance as a witness or other participant in a proceeding in which such
person or the Corporation is not a named party to such proceeding, provided that
such appearance or participation is on behalf of the Corporation or by reason of
his capacity as a director or officer, or former director or officer of the
Corporation. Such expenses incurred by other employees and agents of the
Corporation and other persons eligible for indemnification under this Article VI
may be paid upon such terms and conditions, if any, as the Board of Directors
deems appropriate.
(e) If in a suit or proceeding for indemnification required under this
Article VI of a director or officer, or former director or officer, of the
Corporation or any of its affiliates, a court of competent jurisdiction
determines that such person is entitled to indemnification under this Article
VI, the court shall award, and the Corporation shall pay, to such person the
expenses incurred in securing such judicial determination.
(f) It is the intention of the Corporation to indemnify the persons
referred to in this Article VI to the fullest extent permitted by law and with
respect to any action, suit or proceeding arising from events which occur at any
time prior to or during which this Article VI is in effect. The indemnification
and advancement of expenses provided by this Article VI shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be or become entitled under any law, the Certificate
of Incorporation, these Bylaws, agreement, the vote of Stockholders or
disinterested directors or otherwise, or under any policy or policies of
insurance purchased and maintained by the Corporation on behalf of any such
person, both as to action in his official capacity and as to action in another
capacity while holding such office, and shall continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such person.
(g) The indemnification provided by this Article VI shall be subject to
all valid and applicable laws, and, in the event this Article VI or any of the
provisions hereof or the indemnification contemplated hereby are found to be
inconsistent with or contrary to any such valid laws, the latter shall be deemed
to control and this Article VI shall be regarded as modified accordingly, and,
as so modified, to continue in full force and effect.
SECTION 6.2 SURVIVAL. The provisions of this Article VI shall continue as to any
person who has ceased to be a director, officer, employee or agent of the
Corporation and shall inure to the benefit of the estate, executors,
administrators, heirs, legatees and devisees of any person entitled to
indemnification under this Article VI.
SECTION 6.3 AMENDMENT. No amendment, modification or repeal of this Article VI
or any provision hereof shall in any manner terminate, reduce or impair the
right of any past, present or future director, officer, employee or agent of the
Corporation to be indemnified by the Corporation, nor the obligation of the
Corporation to indemnify any such director, officer,
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employee or agent, under and in accordance with the provisions of this Article
VI as in effect immediately prior to such amendment, modification or repeal with
respect to claims arising, in whole or in part, from a state of facts extant on
the date of, or relating to matters occurring prior to, such amendment,
modification or repeal, regardless of when such claims may arise or be asserted.
SECTION 6.4 DEFINITIONS. For purposes of this Article VI, (i) reference to any
person shall include the estate, executors, administrators, heirs, legatees and
devisees of such person, (ii) "employee benefit plan" and "fiduciary" shall be
deemed to include, but not be limited to, the meaning set forth, respectively,
in sections 3(3) and 21 (A) of the Employee Retirement Income Security Act of
1974, as amended, (iii) references to the judgments, fines and amounts paid or
owed in settlement or rendered or levied shall be deemed to encompass and
include excise taxes required to be paid pursuant to applicable law in respect
of any transaction involving an employee benefit plan and (iv) references to the
Corporation shall be deemed to include any predecessor corporation or entity and
any constituent corporation or entity absorbed in a merger, consolidation or
other reorganization of or by the Corporation which, if its separate existence
had continued, would have had power and authority to indemnify its directors,
officers, employees, agents and fiduciaries so that any person who was a
director, officer, employee, agent or fiduciary of such predecessor or
constituent corporation or entity, or served at the request of such predecessor
or constituent corporation or entity as a director, officer, employee, agent or
fiduciary 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 VI with respect to the Corporation as such person
would have with respect to such predecessor or constituent corporation or entity
if its separate existence had continued.
ARTICLE VII
CAPITAL STOCK
SECTION 7.1 CERTIFICATES OF STOCK. Certificates of stock shall be issued to each
Stockholder certifying the number of shares owned by him in the Corporation and
shall be in a form not inconsistent with the Certificate of Incorporation and as
approved by the Board of Directors. The certificates shall be signed by the
Chairman of the Board, the President or a Vice President and by the Secretary or
an Assistant Secretary, or the Treasurer or an Assistant Treasurer and may be
sealed with the seal of the Corporation or a facsimile thereof. Any or all of
the signatures 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.
If the Corporation shall be authorized to issue more than one
(1) class of stock or more than one (1) series of any class, the powers,
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
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represent such class or series of stock, provided that, except as otherwise
provided by statute, 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 powers,
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.
SECTION 7.2 LEGENDS. The Board of Directors shall have the power and authority
to provide that certificates representing shares of stock of the Corporation
bear such legends and statements (including, without limitation, statements
relating to the powers, designations, preferences and relative, participating,
optional or other special rights and qualifications, limitations or restrictions
of the shares represented by such certificates) as the Board of Directors deems
appropriate in connection with the requirements of federal or state securities
laws or other applicable laws.
SECTION 7.3 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 owner of such certificate, or his legal
representative. When authorizing the issuance of a new certificate, the Board of
Directors may in its discretion, as a condition precedent to the issuance
thereof, require the owner, or his legal representative, to give a bond in such
form and substance with such surety as it may direct, to indemnify the
Corporation against any claim that may be made on account of the alleged loss,
theft or destruction of such certificate or the issuance of such new
certificate.
SECTION 7.4 TRANSFER REGULATIONS. The Board of Directors shall have the power
and authority to make all such rules and regulations as they may deem expedient
concerning the issue, transfer and registration or the replacement of
certificates for shares of stock of the Corporation. The Board of Directors may
(i) appoint and remove transfer agents and registrars of transfers and (ii)
require all stock certificates to bear the signature of any such transfer agent
and/or any such registrar of transfers.
SECTION 7.5 FIXING DATE FOR DETERMINATION OF STOCKHOLDERS OF RECORD FOR CERTAIN
PURPOSES.
(a) 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 entitled to exercise any rights in respect of any change,
conversion or exchange of capital stock or for the purpose of any other lawful
action, the Board of Directors may fix, in advance, a record date, which shall
not be more than 60 days prior to the date of payment of such dividend or other
distribution or allotment of such rights or the date when any such rights in
respect of any change, conversion or exchange of stock may be exercised or the
date of such other action. In such a case, only Stockholders of record on the
date so fixed shall be entitled to receive any such dividend or other
distribution or allotment of rights or to exercise such rights or for any other
purpose, as the case may be, notwithstanding any transfer of any stock on the
books of the Corporation after any such record date fixed as aforesaid.
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(b) 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 7.6 DIVIDENDS. Subject to the provisions of the Certificate of
Incorporation, if any, and except as otherwise provided by law, the directors
may declare dividends upon the capital stock of the Corporation as and when they
deem it to be expedient. Such dividends may be paid in cash, in property or in
shares of the Corporation's capital stock. Before declaring any dividend the
directors may set apart out of the funds of the Corporation available for
dividends such sum or sums as the directors from time to time in their
discretion think 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 determine to be conducive to the interests of the Corporation
and the directors may modify or abolish any such reserve in the manner in which
it was created. A director shall be fully protected in relying in good faith
upon the books of account of the Corporation or statements prepared by any of
its officers as to the value and amount of the assets, liabilities or net
profits of the Corporation or any other facts pertinent to the existence and
amount of surplus or other funds from which dividends might properly be
declared.
SECTION 7.7 REGISTERED STOCKHOLDERS. Except as expressly provided by law, the
Certificate of Incorporation and these Bylaws, the Corporation shall be entitled
to treat registered Stockholders as the only holders and owners in fact of the
shares standing in their respective names and the Corporation shall not be bound
to recognize any equitable or other claim to or interest in such shares on the
part of any other person, regardless of whether it shall have express or other
notice thereof.
SECTION 7.8 TRANSFER OF STOCK. Transfers of shares of the capital stock of the
Corporation shall be made only on the books of the Corporation by the registered
owners thereof, or by their legal representatives or their duly authorized
attorneys. Upon any such transfers the old certificates shall be surrendered to
the Corporation by the delivery thereof to the person in charge of the stock
transfer books and ledgers, by whom they shall be canceled and new certificates
shall thereupon be issued.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
SECTION 8.1 CORPORATE SEAL. If one be adopted, the corporate seal shall have
inscribed thereon the name of the Corporation and shall be in such form as may
be approved by the Board of Directors. Said seal may be used by causing it or a
facsimile thereof to be impressed or affixed or in any manner reproduced.
SECTION 8.2 FISCAL YEAR. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
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SECTION 8.3 CHECKS, DRAFTS, NOTES. All checks, drafts or other orders for the
payment of money, notes or other evidences of indebtedness issued in the name of
the Corporation shall be signed by such officer or officers, agent or agents of
the Corporation, and in such manner as shall from time to time be determined by
resolution (whether general or special) of the Board of Directors or may be
prescribed by any officer or officers, or any officer and agent jointly,
thereunto duly authorized by the Board of Directors.
SECTION 8.4 NOTICE AND WAIVER OF NOTICE. Whenever notice is required to be given
to any director or Stockholder under the provisions of applicable law, the
Certificate of Incorporation or of these Bylaws it shall not be construed to
only mean personal notice, rather, such notice may also be given (i) in writing,
by mail, postage prepaid, addressed to such Stockholder, director or committee
member at his address as it appears on the books or (in the case of a
stockholder) the stock transfer records of the Corporation or (ii) by any other
method permitted by law (including, but not limited to, overnight courier
service , telegram, telex or telecopier). Any notice required or permitted to be
given by mail shall be deemed to be delivered and given at the time when the
same is deposited in the United States mail as aforesaid. Any notice required or
permitted to be given by overnight courier service shall be deemed to be
delivered and given one business day after delivery to such service with all
charges prepaid and addressed as aforesaid. Any notice required or permitted to
be given by telegram, telex or telecopy shall be deemed to be delivered and
given at the time transmitted with all charges prepaid and addressed as
aforesaid. Notice to directors may also be given by telegram, cable or other
form of recorded communication, by personal delivery or by telephone. Whenever
notice is required to be given under any provision of law, the Certificate of
Incorporation or these Bylaws, a waiver thereof in writing, by telegraph, cable
or other form of recorded communication, signed by the person or persons
entitled to said 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 on the ground that 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 Bylaws.
SECTION 8.5 EXAMINATION OF BOOKS AND RECORDS. The Board of Directors shall
determine from time to time whether, and if allowed, when and under what
conditions and regulations the accounts and books of the Corporation (except
such as may by statute be specifically opened to inspection) or any of them
shall be open to inspection by the Stockholders, and the Stockholders' rights in
this respect are and shall be restricted and limited accordingly.
SECTION 8.6 VOTING UPON SHARES HELD BY THE CORPORATION. Unless otherwise
provided by law or by the Board of Directors, the Chairman of the Board of
Directors, if one shall be elected, or the President, if a Chairman of the Board
of Directors shall not be elected, acting on behalf of the Corporation, shall
have full power and authority to attend and to act and to vote at any meeting of
Stockholders of any corporation in which the Corporation may hold stock and, at
any such meeting, shall possess and may exercise any and all of the rights and
powers incident to the
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ownership of such stock which, as the owner thereof, the Corporation might have
possessed and exercised, if present. The Board of Directors by resolution from
time to time may confer like powers upon any person or persons.
SECTION 8.7 RESERVES. There may be created by the Board of Directors, out of
funds of the Corporation legally available therefor, such reserve or reserves as
the Board of Directors from time to time, in its absolute discretion, considers
proper to provide for contingencies, to equalize dividends or to repair or
maintain any property of the Corporation, or for such other purpose as the Board
of Directors shall consider beneficial to the Corporation, and the Board of
Directors may thereafter modify or abolish any such reserve in its absolute
discretion.
SECTION 8.8 CORPORATE CONTRACTS AND INSTRUMENTS. Subject always to the specific
directions of the Board of Directors, the Chairman of the Board (if any), the
President, any Vice President, the Secretary or the Treasurer may enter into
contracts and execute instruments in the name and on behalf of the Corporation.
The Board of Directors and, subject to the specific directions of the Board of
Directors, the Chairman of the Board (if any), the Chief Executive Officer or
the President may authorize one or more officers, employees or agents of the
Corporation to enter into any contract or execute any instrument in the name of
and on behalf of the Corporation, and such authority may be general or confined
to specific instances.
SECTION 8.9 ATTESTATION. With respect to any deed, deed of trust, mortgage or
other instrument executed by the Corporation through its duly authorized officer
or officers, the attestation to such execution by the Secretary or an Assistant
Secretary of the Corporation shall not be necessary to constitute such deed,
deed of trust, mortgage or other instrument a valid and binding obligation of
the Corporation unless the resolutions, if any, of the Board of Directors
authorizing such execution expressly state that such attestation is necessary.
SECTION 8.10 INVALID PROVISIONS. If any part of these Bylaws shall be invalid or
inoperative for any reason, the remaining parts, so far as is possible and
reasonable, shall remain valid and operative.
SECTION 8.11 HEADINGS. The headings used in these Bylaws have been inserted for
administrative convenience only and shall not limit or otherwise affect any of
the provisions of these Bylaws.
SECTION 8.12 REFERENCES TO GENDER/NUMBER. Whenever in these Bylaws the singular
number is used, the same shall include the plural where appropriate. Words of
any gender used in these Bylaws shall include the other gender where
appropriate.
ARTICLE IX
AMENDMENTS
SECTION 9.1 AMENDMENT. Except as otherwise expressly provided in the Certificate
of Incorporation, the directors, by the affirmative vote of a majority of the
entire Board of Directors
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and without the assent or vote of the Stockholders, may at any meeting, provided
the substance of the proposed amendment shall have been stated in the notice of
the meeting, make, repeal, alter, amend or rescind any of these Bylaws. The
Stockholders shall not make, repeal, alter, amend or rescind any of the
provisions of these Bylaws except by the holders of not less than 80% of the
total voting power of all shares of stock of the Corporation entitled to vote in
the election of directors, considered for purposes of this Article IX as one
class.
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