EXHIBIT 3.2
BY-LAWS
OF
WASTE MANAGEMENT, INC.
AS OF NOVEMBER 11, 2004
ARTICLE I
OFFICES
SECTION 1.1. Registered Office. The registered office of the
Corporation required by the General Corporation Law of the State of Delaware to
be maintained in the State of Delaware shall be the registered office named in
the original Certificate of Incorporation of the Corporation, or such other
office as may be designated from time to time by the Board of Directors in the
manner provided by law. Should the Corporation maintain a principal office or
place of business within the State of Delaware, such registered office need not
be identical to such principal office or place of business of the Corporation.
SECTION 1.2. Other Offices. The Corporation may also have offices at
such other places both within and without the State of Delaware as the Board of
Directors may from time to time determine or the business of the Corporation may
require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 2.1. Place of Meetings. All meetings of the
stockholders shall be held at the principal office of the Corporation, or at
such other place either within or without the State of Delaware and at such date
and time as shall be designated from time to time by the Board of Directors and
stated in the notice or waivers of notice of the meeting.
SECTION 2.2. Voting List. The officer who has charge of the stock
ledger of the Corporation shall prepare and make, at least ten days before every
meeting of stockholders, a complete list of the stockholders entitled to vote at
the meeting, arranged in alphabetical order for each class of stock, and showing
the address of each stockholder and the number of shares registered in the name
of each stockholder. Such list shall be opened to the examination of any
stockholder, for any purpose germane to the meeting, during ordinary business
hours, for a period of at least ten days prior to the meeting, either at a place
within the city where the meeting is to be held, which place shall be specified
in the notice, or if not so specified, at the place where the meeting is to be
held.
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The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
SECTION 2.3. Annual Meetings. An annual meeting of the stockholders,
for the election of directors to succeed those whose terms expire and for the
transaction of such other business as may properly come before the meeting,
shall be held at such place, within or without the State of Delaware, on such
date, and at such time as the Board of Directors shall fix each year and set
forth in the notice of the meeting, which date shall be within 13 months
subsequent to the later of the date of incorporation or the last annual meeting
of stockholders.
SECTION 2.4. Special Meeting. Special meetings of the stockholders,
for any purpose or purposes, unless otherwise prescribed by statute or by the
Certificate of Incorporation, may be called by the Chairman of the Board (if
any), by the Chief Executive Officer, or by written order of a majority of the
directors, but such special meetings may not be called by any other person or
persons. The Chairman, Chief Executive Officer, or directors so calling any such
meeting shall fix the date and time of, and the place (either within or without
the State of Delaware) for, the meeting.
SECTION 2.5. Notice of Meeting. Written notice of the annual and
each special meeting of stockholders, stating the place, date and hour and, in
the case of a special meeting, the purpose or purposes for which the meeting is
called, shall be given to each stockholder entitled to vote thereat, not less
than ten nor more than 60 days before the meeting. Such notice may be delivered
either personally or by mail. If mailed, notice is given when deposited in the
United States mail, postage prepaid, directed to the stockholder at his address
as it appears on the records of the Corporation.
SECTION 2.6. Quorum. The holders of a majority of the stock issued
and outstanding and entitled to vote thereat, present in person or represented
by proxy, shall constitute a quorum at any meeting of stockholders for the
transaction of business except as otherwise provided by statute or by the
Certificate of Incorporation. The stockholders present at a duly organized
meeting may continue to transact business until adjournment, notwithstanding the
withdrawal of enough stockholders to leave less than a quorum.
Notwithstanding the other provisions of the Certificate of
Incorporation or these by-laws, the chairman of the meeting or the holders of a
majority of the shares of the stock issued and outstanding and entitled to vote,
present in person or represented by proxy, although not constituting a quorum,
shall have power to adjourn, postpone, or recess the meeting from time to time,
without notice other than announcement at the meeting of the time and place of
the adjourned, postponed, or recessed meeting. 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. At such adjourned meeting
at which a quorum shall be present or represented any business may be transacted
which might have been transacted at the meeting as originally notified.
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SECTION 2.7. Voting. When a quorum is present at any meeting of the
stockholders, the vote of the holders of a majority of the stock having voting
power present in person or represented by proxy shall decide any question
brought before such meeting, unless the question is one upon which, by express
provision of the statutes, of the Certificate of Incorporation or of these
by-laws, a different vote is required, in which case such express provision
shall govern and control the decision of such question. Where a separate vote by
class is required, the affirmative vote of the majority of shares of such class
present in person or represented by proxy at the meeting shall be the act of
such class. Every stockholder having the right to vote at a meeting of
stockholders or to express consent or dissent to a corporate action in writing
without a meeting shall be entitled to vote in person, or by proxy appointed by
an instrument in writing subscribed by such stockholder, bearing a date not more
than three years prior to voting, unless such instrument provides for a longer
period, and filed with the Secretary of the Corporation, or such other officer
as the Board of Directors may from time to time determine by resolution, before,
or at the time of, the meeting.
All proxies shall be received and taken charge of and all ballots
shall be received and canvassed by the secretary of the meeting who shall decide
all questions touching upon the qualification of voters, the validity of the
proxies, and the acceptance or rejection of votes, unless an inspector or
inspectors shall have been appointed by the chairman of the meeting, in which
event such inspector or inspectors shall decide all such questions. Each proxy
shall be revocable unless expressly provided therein to be irrevocable and
coupled with an interest sufficient in law to support an irrevocable power. If
such instrument shall designate two or more persons to act as proxies, unless
such instrument shall provide the contrary, a majority of such persons present
at any meeting at which their powers thereunder are to be exercised shall have
and may exercise all the powers of voting or giving consents thereby conferred,
or if only one be present, then such powers may be exercised by that one, or, if
an even number attend and a majority do not agree on any particular issue, each
proxy so attending shall be entitled to exercise such powers in respect of the
same portion of the shares as he is of the proxies representing such shares.
SECTION 2.8. Voting of Stock of Certain Holders; Elections:
Inspectors. Shares held in the name of another corporation, domestic or foreign,
may be voted by such officer, agent or proxy as the by-laws of such corporation
may prescribe, or in the absence of such provision, as the Board of Directors of
such 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.
If shares (or other securities having voting power) are held of
record in the names of two or more persons, whether fiduciaries, members of a
partnership, 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 of the Corporation is given
written
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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:
(a) If only one votes, his act binds all;
(b) If more than one vote, the act of the majority so voting binds
all;
(c) If more than one vote, but the vote is evenly split on any
particular matter, each fraction may vote the securities in question
proportionally, or any person voting the shares, or a beneficiary, if any,
may apply to the Court of Chancery or such other court as may have
jurisdiction to appoint an additional person to act with the persons so
voting the shares, which shall then be voted as determined by a majority
of such persons and the person appointed by the Court. If the instrument
so filed shows that any such tenancy is held in unequal interests, a
majority or even-split for the purpose of this subsection shall be a
majority or even-split in interest.
All voting of stockholders shall be taken by written ballots, each
of which shall state the name of the stockholder or proxy voting and such other
information as may be required under the procedure established for the meeting.
At any meeting at which a vote is taken by ballots, the chairman of the meeting
may appoint one or more inspectors, each of whom shall subscribe an oath or
affirmation to execute faithfully the duties of inspector at such meeting with
strict impartiality and according to the best of his ability. Such inspector
shall receive the ballots, count the votes and make and sign a certificate of
the result thereof. The chairman of the meeting may appoint any person to serve
as inspector, except no candidate for the office of director shall be appointed
as inspector.
Unless otherwise provided in the Certificate of Incorporation,
cumulative voting for the election of directors shall be prohibited.
SECTION 2.9. Conduct of Meeting. The meetings of the stockholders
shall be presided over by the Chairman of the Board (if any), or if he is not
present, by the Vice Chairman of the Board (if any, but if there is more than
one, the Vice Chairman who is senior in terms of time as such), or if neither
the Chairman of the Board (if any) nor the Vice Chairman of the Board (if any)
is present, by the Chief Executive Officer, or if neither the Chairman of the
Board (if any), the Vice Chairman of the Board (if any) nor the Chief Executive
Officer is present, by a chairman designated by the Board of Directors. The
Secretary of the Corporation, if present, shall act as secretary of such
meetings, or if he is not present, an Assistant Secretary shall so act; if
neither the Secretary nor an Assistant Secretary is present, then a secretary
shall be appointed by the chairman of the meeting. The chairman of any meeting
of stockholders shall determine the order of business and the procedure at the
meeting, including such regulation of the manner of voting and the conduct of
discussion as seem to him in order. Unless the chairman of the meeting of
stockholders shall otherwise determine, the order of business shall be as
follows:
(a) Calling of meeting to order.
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(b) Election of a chairman and the appointment of a secretary if
necessary.
(c) Presentation of proof of the due calling of the meeting.
(d) Presentation and examination of proxies and determination of a
quorum.
(e) Reading and settlement of the minutes of the previous meeting.
(f) Reports of officers and committees.
(g) The election of directors if an annual meeting, or a meeting called
for that purpose.
(h) Unfinished business.
(i) New business.
(j) Adjournment.
SECTION 2.10. Treasury Stock. The Corporation shall not vote,
directly or indirectly, shares of its own stock owned by it; and such shares
shall not be counted in determining the total number of outstanding shares.
SECTION 2.11. Fixing Record Date. The Board of Directors may fix in
advance a date, not exceeding 60 days preceding the date of any meeting of
stockholders or any adjournment thereof, or the date for payment of any dividend
or distribution, or the date for the allotment of rights, or the date when any
change, or conversion or exchange of capital stock shall go into effect, or a
date in connection with obtaining express consent to corporate action in writing
without a meeting, as a record date for the determination of the stockholders
entitled to notice of or to vote at, any such meeting and any adjournment
thereof, or entitled to receive payment of such dividend or distribution, or to
receive any such allotment of rights, or to exercise the rights in respect of
any such change, conversion or exchange of capital stock, or to give such
consent, 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 such notice
of, and to vote at, any such meeting and any adjournment thereof, or to receive
payment of such dividends or distribution, or to receive such allotment of
rights, or to exercise such rights, or to give such consent, as the case may be,
notwithstanding any transfer of any stock on the books of the corporation after
any such record dated fixed as aforesaid. With respect to a meeting of
stockholders, the record date shall not be less than ten days before the date of
such meeting.
If the Board of Directors does not fix a record date for any meeting
of the stockholders, the record date for determining stockholders entitled to
notice of or to vote at such meeting shall be at the close of business on the
day next preceding the day on which notice is given, or, if in accordance with
Section 5.2 of these by-laws notice is waived, at the close of business on the
day next preceding the day on which the meeting is held. The record date for
determining stockholders for any other purpose shall be at the close of business
on the day on which the Board of Directors adopts the resolution relating
thereto. A determination of stockholders of record entitled to
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notice of or to vote at a meeting of stockholders shall apply to any adjournment
of the meeting; provided, however, that the Board of Directors may fix a new
record date for the adjourned meeting.
SECTION 2.12. Stockholder Proposals. At an annual or special meeting
of the stockholders, only such business shall be conducted as shall have been
properly brought before the meeting. To be properly brought before an annual or
special meeting, business must be (a) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Chairman of the Board,
the Chief Executive Officer, or the Board of Directors, (b) otherwise properly
brought before the meeting by or at the direction of the Chairman of the Board,
the Chief Executive Officer, or the Board of Directors, or (c) otherwise
properly brought before the meeting by a stockholder.
No proposal by a stockholder shall be presented at an annual or special
meeting of stockholders unless such stockholder shall provide the Board of
Directors or the Secretary of the Corporation with timely written notice of
intention to present a proposal for action at the forthcoming meeting of
stockholders, which notice shall include (a) the name and address of such
stockholder, (b) the number of voting securities he or she holds of record and
which he or she holds beneficially, (c) the text of the proposal to be presented
at the meeting, (d) a statement in support of the proposal, and (e) any material
interest of the stockholder in such proposal. To be timely, a stockholder's
notice with respect to an annual meeting of stockholders 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 date the
Corporation's proxy statement was released to stockholders in connection with
the previous year's annual meeting of stockholders; provided, however, that if
no annual meeting was held the previous year or the date of the annual meeting
has been changed by more than 30 calendar days from the date contemplated at the
time of the previous year's proxy statement, notice by the stockholder to be
timely must be so received at least 80 days prior to the date the Corporation
intends to distribute its proxy statement with respect to such meeting. To be
timely, a stockholder's notice with respect to a special meeting must be
delivered to or mailed and received at the principal executive offices of the
Corporation, not less than 60 days nor more than 90 days prior to the meeting;
provided, however, that in the event that less than 70 days' notice or prior
public disclosure of the date of the meeting is given or made to stockholders,
notice by the stockholder to be timely must be so received not later than the
close of business on the fifth (5th) day following the day on which such notice
of the date of the special meeting was mailed or such public disclosure was
made. Any stockholder may make any other proposal at an annual or special
meeting of stockholders and the same may be discussed and considered, but unless
stated in writing and filed with the Board of Directors or the Secretary prior
to the date set forth above, no action with respect to such proposal shall be
taken at such meeting and such proposal shall be laid over for action at an
adjourned, special, or annual meeting of the stockholders taking place no
earlier than 120 days after such meeting.
This provision shall not prevent the consideration and approval or
disapproval at an annual meeting of reports of officers, directors, and
committees; but in connection with such reports, no new business shall be acted
upon at such annual meeting unless stated and filed as provided in this Section
2.12. Notwithstanding anything in the by-laws to the contrary, no business shall
be conducted at any annual or special meeting except in accordance with the
procedures set forth in this Section 2.12. The chairman of the annual meeting or
a special meeting shall, if the facts warrant,
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determine and declare to the meeting that business was not properly brought
before the meeting and in accordance with the provisions of this Section 2.12,
and if he should so determine, he shall so declare to the meeting and any such
business not properly brought before the meeting shall not be transacted.
Notwithstanding any other provision of these by-laws, the Corporation
shall be under no obligation to include any stockholder proposal in its proxy
statement materials or otherwise present any such proposal to stockholders at a
special or annual meeting of stockholders if the Board of Directors reasonably
believes the proponents thereof have not complied with Sections 13 and 14 of the
Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder, and the Corporation shall not be required to include in
its proxy statement material to stockholders any stockholder proposal not
required to be included in its proxy material to stockholders in accordance with
such Act, rules, or regulations.
SECTION 2.13. Nomination of Directors. Only persons who are
nominated in accordance with the procedures of this Section 2.13 shall be
eligible for election as directors. Subject to the rights of holders of any
class or series of stock having a preference over the common stock as to
dividends or upon liquidation, nominations for the election of directors may be
made by the Board of Directors or by any stockholder entitled to vote in the
election of directors generally who complies with the notice procedures set
forth in this Section 2.13. Any stockholder entitled to vote in the election of
directors generally may nominate one or more persons for election as a director
at a meeting only if timely written notice of such stockholder's intent to make
such nomination or nominations has been given, either by personal delivery or by
U.S. mail, first class postage prepaid, return receipt requested, to the
Secretary of the Corporation, or as otherwise provided in accordance with
applicable law.
To be timely, a stockholder's 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 date the Corporation's proxy
statement was released to stockholders in connection with the previous year's
annual meeting of stockholders; provided, however, that if no annual meeting was
held the previous year or the date of the annual meeting has been changed by
more than 30 calendar days from the date contemplated at the time of the
previous year's proxy statement, notice by the stockholder to be timely must be
so received at least 80 days prior to the date the Corporation intends to
distribute its proxy statement with respect to such meeting. Each such notice
shall set forth: (a) the name and address of the stockholder who intends to make
the nomination, (b) the name, age, business address, and home address of the
person or persons to be nominated; (c) the principal occupation of the person or
persons nominated; (d) a representation that the stockholder is a holder of
record of stock of the Corporation entitled to vote at such meeting and intends
to appear in person or by proxy at the meeting and intends to appear at the
meeting to nominate the person or persons specified in the notice; (e) a
description of all arrangements or understandings between the stockholder and
each nominee and any other person or persons (naming such person or persons)
pursuant to which the nomination or nominations are to be made by the
stockholder; (f) such other information regarding each nominee proposed by such
stockholder as would be required to be included in a proxy statement filed
pursuant to the rules of the Securities and Exchange Commission, had the nominee
been nominated, or intended to be nominated, by the Board of Directors; and (g)
the
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consent of each nominee to serve as a director of the Corporation if so elected.
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 of the Corporation
unless nominated in accordance with the procedures set forth in this Section
2.13. The chairman of the 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 the by-laws, and if he should so determine, he shall so
declare to the meeting and the defective nomination shall be disregarded.
ARTICLE III
BOARD OF DIRECTORS
SECTION 3.1. Powers. The business and affairs of the Corporation
shall be managed by or under the direction of the Board of Directors, which may
exercise all such powers of the Corporation and do all such lawful acts and
things as are not by law or by the Certificate of Incorporation or by these
by-laws directed or required to be exercised or done by the stockholders.
SECTION 3.2. Number, Election and Term. Except as otherwise provided
in the Certificate of Incorporation relating to the rights of the holders of any
class or series of Preferred Stock, voting separately by class or series, to
elect additional directors under specified circumstances, the number of
directors of the Corporation shall initially be the number specified in the
Certificate of Incorporation, and subject to the following sentence, such number
may be increased or decreased by a resolution duly adopted by the Board of
Directors. Unless approved by at least two-thirds of the incumbent directors,
the number of directors which shall constitute the whole Board of Directors
shall be no fewer than three and no more than nine. Unless otherwise provided in
the Certificate of Incorporation, directors need not be residents of Delaware or
stockholders of the Corporation.
Commencing with the election of directors at the 2003 annual meeting of
stockholders, all directors, other than those who may be elected by the holders
of any class or series of Preferred Stock, voting separately by class or series,
shall be elected annually. Notwithstanding the foregoing provision of this
Article, each director shall serve until his successor is duly elected and
qualified or until his earlier death, resignation or removal.
SECTION 3.3. Vacancies, Additional Directors and Removal From
Office. Except as otherwise provided pursuant to the provisions of the
Certificate of Incorporation relating to the rights of the holders of any class
or series of Preferred Stock, voting separately by class or series, to elect
directors under specified circumstances, any director or directors may be
removed from office at any time, with or without cause but only by the
affirmative vote, at any regular meeting or special meeting (as the case may be)
of the stockholders, of not less than two-thirds of the total number of votes of
the then outstanding shares of capital stock of the Corporation entitled to vote
generally in
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the election of directors, voting together as a single class, but only if notice
of such proposal was contained in the notice of such meeting.
In the event of any increase or decrease in the authorized number of
directors, the newly created or eliminated directorships resulting from such
increase or decrease shall be appointed or determined by the Board of Directors.
Vacancies in the Board of Directors, however caused, and newly-created
directorships shall be filled solely by a majority vote of the directors then in
office, whether or not a quorum, and any director so chosen shall hold office
until his successor is duly elected and qualified, subject, however, to prior
death, resignation, retirement, disqualification or removal from office. No
decrease in the number of directors constituting the Board of Directors shall
shorten the term of any incumbent director.
SECTION 3.4. Regular Meeting. A regular meeting of the Board of
Directors shall be held each year, without notice other than this by-law, at the
place of, and immediately following, the annual meeting of stockholders if a
quorum is present; and other regular meetings of the Board of Directors shall be
held each year, at such time and place as the Board of Directors may provide,
either within or without the State of Delaware, without notice.
SECTION 3.5. Special Meeting. A special meeting of the Board of
Directors may be called by the Chairman of the Board (if any) or by the Chief
Executive Officer and shall be called by the Secretary on the written request of
any two directors. The Chairman or Chief Executive Officer so calling, or the
directors so requesting, any such meeting shall fix the time and place, either
within or without the State of Delaware, of holding such meeting.
SECTION 3.6. Notice of Special Meeting. Personal written or
electronic notice of special meetings of the Board of Directors shall be given
to each director at least 24 hours prior to the time of such meeting. Any
director may waive notice of any meeting. The attendance of a director at any
meeting shall constitute a waiver of notice of such meeting, except where a
director attends a meeting for the purpose of objecting to the transaction of
any business because the meeting is not lawfully called or convened.
SECTION 3.7. Place of Meetings; Order of Business. The directors may
hold their meetings and may have an office and keep the books of the
Corporation, except as otherwise provided by law, in such place or places,
within or without the State of Delaware, as the Board of Directors may from time
to time determine. The Chairman of the Board shall preside at all meetings of
the Board of Directors. In the absence of the Chairman of the Board, a chairman
shall be elected from the directors present. The Secretary of the Corporation
shall act as secretary of all meetings of the directors; but in the absence of
the Secretary, the Chairman may appoint any person to act as secretary of the
meeting. At all meetings of the Board of Directors business shall be transacted
in such order as shall from time to time be determined by the Chairman of the
Board or, in his absence, by the director elected as chairman of the meeting.
SECTION 3.8. Quorum and Participation. A majority of the Board of
Directors shall constitute a quorum for the transaction of business at any
meeting of the Board of Directors, and the act of a majority of the directors
present at any meeting at which there is a quorum shall be the act of
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the Board of Directors, except as may be otherwise specifically provided by
statute, by the Certificate of Incorporation or by these by-laws. Members of the
Board of Directors may participate in a meeting of the Board of Directors or
such committee, as the case may be, by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other and such participation shall constitute presence in
person and attendance at such meeting, except where a person participates in the
meeting for the express purpose of objecting to the transaction of any business
on the ground that the meeting is not lawfully called or convened. If a quorum
shall not be present at any meeting of the Board of Directors, the directors
present thereat may adjourn the meeting from time to time, without notice other
than announcement at the meeting, until a quorum shall be present.
SECTION 3.9. Presumption of Assent. A director who is present at a
meeting of the Board of Directors at which action on any corporate matter is
taken shall be presumed to have assented to the 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. Such right to dissent shall not apply to a director who
voted in favor of such action.
SECTION 3.10. Action Without Meeting. Unless otherwise restricted by
the Certificate of Incorporation or these by-laws, any action required or
permitted to be taken at any meeting of the Board of Directors, or of any
committee thereof as provided in Article IV of these by-laws, may be taken
without a meeting, if a written consent thereto is signed by all members of the
Board or of such committee, as the case may be, and such written consent is
filed with the minutes of proceedings of the Board or committee. Such consent
shall have the same force and effect as a unanimous vote at a meeting, and may
be stated as such in any document or instrument filed with the Secretary of
State of Delaware.
SECTION 3.11. Compensation. Unless otherwise restricted by the
Certificate of Incorporation, the Board of Directors shall have the authority to
fix the compensation of directors. No provision of these by-laws shall be
construed to preclude any director from serving the corporation in any other
capacity and receiving compensation therefor.
SECTION 3.12. Approval or Ratification of Acts or Contracts by
Stockholders. The Board of Directors in its discretion may submit any act or
contract for approval or ratification at any annual meeting of the stockholders,
or at any special meeting of the stockholders called for the purpose of
considering any such act or contract, and any act or contract that shall be
approved or be ratified by the vote of the stockholders holding a majority of
the issued and outstanding shares of stock of the Corporation entitled to vote
and present in person or by proxy at such meeting (provided that a quorum is
present), shall be as valid and as binding upon the Corporation and upon all the
stockholders as if it has been approved or ratified by every stockholder of the
Corporation. In addition, any such act or contract may be approved or ratified
by the written consent of stockholders holding a majority of the issued and
outstanding shares of capital stock of the Corporation entitled to vote and such
consent shall be as valid and as binding upon the Corporation and upon all the
stockholders as if it had been approved or ratified by every stockholder of the
Corporation.
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SECTION 3.13. Chairman of the Board. The Board of Directors annually
shall elect a Chairman of the Board from among its members and shall fill any
vacancy in the position of Chairman of the Board at such time and in such manner
as the Board shall determine. The Chairman of the Board may, but need not, be an
officer of or employed in an executive or any other capacity by the Corporation.
The Chairman of the Board shall have the powers prescribed to him in Section 6.6
of these by-laws.
ARTICLE IV
COMMITTEES OF DIRECTORS
SECTION 4.1. Designation, Powers and Name. The Board of Directors
shall designate a Nominating and Governance Committee, a Compensation Committee,
and an Audit Committee and may, by resolution passed by a majority of the whole
Board, designate one or more other committees, each such committee to consist of
one or more of the directors of the Corporation. Any such designated committee
shall have and may exercise such of the powers and authority of the Board of
Directors in the management of the business and affairs of the Corporation as
may be provided in these by-laws or such resolution. Any such designated
committee may authorize the seal of the Corporation to be affixed to all papers
which may require it. No such committee shall have the power or authority in
reference to amending the Certificate of Incorporation (except that a committee
may, to the extent authorized in the resolution or resolutions providing for the
issuance of shares of stock adopted by the Board of Directors as provided by
statute, fix the designation and any of the preferences or rights of such shares
relating to dividends, redemption, dissolution, any distribution of assets of
the Corporation or the conversion into, or the exchange of such shares for,
shares of any other class or classes or any other series of the same or any
other class or classes of stock of the Corporation or fix the number of shares
of any series of stock or authorize the increase or decrease of the shares of
any series), adopting an agreement of merger or consolidation, recommending to
the stockholders the sale, lease or exchange of all or substantially all of the
Corporation's property and assets, recommending to the stockholders a
dissolution of the Corporation or a revocation of a dissolution, or amending the
by-laws of the Corporation; and, unless the resolution, by-laws, or Certificate
of Incorporation expressly so provide, no such committee shall have the power or
authority to declare a dividend, to authorize the issuance of stock, or to adopt
a certificate of ownership and merger. 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 such committee. In the absence
or disqualification of any member of such committee or committees, the 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 such absent or
disqualified member. Such committee or committees shall have such name or names
and such limitations of authority as may be determined from time to time by the
By-laws, by the Charter for such committee adopted by the Board of Directors, or
by a resolution adopted by the Board of Directors.
SECTION 4.2. Procedure; Meetings; Quorum. Any committee designated
pursuant to Section 4.1 shall keep regular minutes of its proceedings and report
the same to the Board of
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Directors when requested, shall fix its own rules or procedures to the extent
not otherwise set forth in the Charter or resolution with respect to such
committee adopted by the Board of Directors, and shall meet at such times and at
such place or places as may be provided by such rules, by the Charter for such
committee adopted by the Board of Directors, or by resolution of such committee
or resolution of the Board of Directors. At every meeting of any such committee,
the presence of a majority of all the members thereof shall constitute a quorum
and the affirmative vote of a majority of the members present shall be necessary
for the adoption by it of any resolution. Unless otherwise restricted by the
Certificate of Incorporation or by these by-laws, the members of any committee
designated by these by-laws or the Board of Directors, may participate in a
meeting of such committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting may hear each other, and such participation shall constitute presence in
person at such meeting. Unless otherwise restricted by the Certificate of
Incorporation or these by-laws, any action required or permitted to be taken at
any meeting of any committee of the Board of Directors may be taken without a
meeting if all members of such committee consent thereto in writing and the
writing or writings are filed with the minutes of the proceedings of the
committee.
SECTION 4.3. Compensation. Compensation for membership on special or
standing committees shall be as determined by the Board of Directors and may
include, but not be limited to, retainers, meeting fees or special compensation
for serving as a chairman of any such committee.
ARTICLE V
NOTICE
SECTION 5.1. Methods of Giving Notice. Whenever under the
provisions of the statutes, the Certificate of Incorporation or these by-laws,
notice is required to be given to any director, member of any committee or
stockholder, such notice shall be in writing and delivered personally or mailed
to such director, member or stockholder; provided that in the case of a director
or a member of any committee such notice may be given orally or by telephone,
electronic or facsimile transmission. If mailed, notice to a director, member of
a committee or stockholder shall be deemed to be given when deposited in the
United States mail first class in a sealed envelope, with postage therein
prepaid, addressed, in the case of a stockholder, to the stockholder at the
stockholder's address as it appears on the records of the corporation or, in the
case of a director or a member of a committee, to such person at his business
address. Notice shall be deemed to have been given on the date such transmission
is sent.
SECTION 5.2. Written Waiver. Whenever any notice is required to be
given under the provisions of the statutes, the Certificate of Incorporation or
these by-laws, a waiver thereof in writing, signed by the person or persons
entitled to said notice, whether before or after the time stated therein, shall
be deemed equivalent thereto. Attendance of a person at a meeting shall
constitute a waiver of notice of such meeting, except when the person attends a
meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any
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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 the by-laws.
ARTICLE VI
OFFICERS
SECTION 6.1. Officers. The Board of Directors shall elect such
officers of the Corporation with the titles and duties that it designates. The
Chairman of the Board, and any Vice Chairmen of the Board, may, but need not, be
officers of the Corporation or employed in an executive or any other capacity by
the Corporation. There may be a Chief Executive Officer, a President, one or
more Vice Presidents, any one or more of which may be designated Executive Vice
President or Senior Vice President, a Chief Financial Officer, a General
Counsel, a Secretary, a Treasurer, a Controller, and such other officers as the
Board of Directors may elect or appoint. The Board of Directors may appoint such
other officers and agents, including Assistant Vice Presidents, Assistant
Secretaries and Assistant Controllers, as it shall deem necessary, who shall
hold their offices for such terms and shall exercise such powers and perform
such duties as shall be determined by the Board. Any two or more offices may be
held by the same person unless the Certificate of Incorporation provides
otherwise. No officer shall execute, acknowledge, verify or countersign any
instrument on behalf of the Corporation in more than one capacity, if such
instrument is required by law, by these by-laws or by any act of the Corporation
to be executed, acknowledged, verified or countersigned by two or more officers.
The Chairman of the Board shall be elected from among the directors in
accordance with Section 3.13 of these by-laws. With the foregoing exception,
none of the other officers need be a director, and none of the officers need be
a stockholder of the Corporation.
SECTION 6.2. Term of Office. Each officer shall hold office until
his successor shall have been chosen and shall have qualified or until his death
or the effective date of his resignation or removal.
SECTION 6.3. Removal and Resignation. Any officer or agent elected
or appointed by the Board of Directors may be removed, with or without cause, by
the affirmative vote of a majority of the Board of Directors whenever, in its
judgment, the best interests of the Corporation shall be served thereby, but
such removal shall be without prejudice to the contractual rights, if any, of
the person so removed. Election or appointment of an officer or agent shall not
of itself create contract rights. Any officer may resign at any time by giving
written notice to the Corporation. Any such resignation shall take effect at the
date of the receipt of such notice or at any later time specified therein, and
unless otherwise specified therein, the acceptance of such resignation shall not
be necessary to make it effective.
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SECTION 6.4. Vacancies. Any vacancy occurring in any office of the
Corporation by death, resignation, removal or otherwise, may be filled by the
Board of Directors for the unexpired portion of the term.
SECTION 6.5. Salaries. The salaries of all officers and agents of
the Corporation shall be fixed by the Board of Directors or pursuant to its
direction; no officer shall be prevented from receiving such salary by reason of
his also being a director.
SECTION 6.6. Chairman of the Board. The Chairman of the Board shall
have all powers and shall perform all duties incident to the office of chairman
of the board. The Chairman shall preside at all meetings of the Board of
Directors and of the stockholders of the Corporation; shall formulate and submit
to the Board of Directors or the Executive Committee (if any) matters of general
policy of the Corporation; shall have authority to call special meetings of the
stockholders and the Board of Directors; and shall have such other powers and
perform such other duties as usually appertain to the office or as may be
prescribed by the Board of Directors or the Executive Committee (if any). The
Chairman of the Board may hold such offices as the Board of Directors may
determine.
SECTION 6.7. Vice Chairman of the Board. In the absence of the
Chairman of the Board, or in the event of his inability or refusal to act, the
Vice Chairman (if any, but if there is more than one, the Vice Chairman who is
senior in terms of time as such) shall perform the duties and exercise the
powers of the Chairman of the Board, and when acting shall have all the powers
of and be subject to all the restriction upon the Chairman of the Board. In the
absence of the Chairman of the Board, such Vice Chairman shall preside at all
meetings of the Board of Directors. In the Chairman's and Vice Chairman's
absence, such duties shall be attended to by a chairman designated by the Board
of Directors. The Vice Chairman shall perform such other duties, and shall have
such other powers, as from time to time may be assigned to him by the Board of
Directors or the Executive Committee (if any).
SECTION 6.8 Chief Executive Officer. The Chief Executive Officer
shall be the chief executive officer of the Corporation and, subject to the
control of the Board of Directors, shall in general manage, supervise, and
control the properties, business, and affairs of the Corporation with all such
powers as may be reasonably incident to such responsibilities. Unless the Board
of Directors otherwise determines, the Chief Executive Officer shall have the
authority to agree upon and execute all leases, contracts, evidences of
indebtedness, and other obligations in the name of the Corporation. In the
absence of the Chairman of the Board and any Vice Chairman of the Board, the
Chief Executive Officer shall preside at all meetings of the stockholders. He
may also preside at any such meeting attended by the Chairman of the Board if he
is so designated by the Chairman. He shall have the power to appoint and remove
subordinate officers, agents, and employees, except those elected or appointed
by the Board of Directors. The Chief Executive Officer shall keep the Board of
Directors and the Executive Committee (if any) fully informed and shall consult
them concerning the business of the Corporation. He shall perform all other
duties normally incident to the office of Chief Executive Officer, and shall
have such other powers and perform such other duties as may be prescribed by the
stockholders, the Board of Directors or the Executive Committee (if any) from
time to time.
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SECTION 6.9 President. The President shall be the chief operating
officer of the Corporation and, subject to the control of the Chief Executive
Officer and the Board of Directors, shall in general manage, supervise and
control the properties, business and day-to-day affairs of the Corporation with
all such powers as may be reasonably incident to such responsibilities. In the
absence of the Chief Executive Officer, or in the event of his inability or
refusal to act, the President shall perform the duties and exercise the powers
of the Chief Executive Officer. He shall have the power to appoint and remove
subordinate officers, agents and employees, except those elected or appointed by
the Board of Directors. Unless the Board of Directors otherwise determines, the
President shall have the authority to agree upon and execute all leases,
contracts, evidences of indebtedness, and other obligations in the name of the
Corporation. The President shall keep the Board of Directors, the Executive
Committee (if any), and the Chief Executive Officer fully informed and shall
consult them concerning the business of the Corporation. He shall vote, or give
a proxy to any other officer of the Corporation to vote, all shares of stock of
any other corporation standing in the name of the Corporation and shall exercise
any and all rights and powers which this Corporation may possess by reason of
its ownership of securities in such other corporation; provided that the Board
of Directors may from time to time, by resolution, confer like powers upon any
other person or persons. In general the President shall have all powers and
shall perform all other duties normally incident to the office of president, and
shall have such other powers and perform such other duties as may be prescribed
by these by-laws, the Board of Directors, or the Executive Committee (if any)
from time to time.
SECTION 6.10. Chief Financial Officer. The Chief Financial Officer
shall be the principal financial officer of the Corporation and shall be
responsible, either directly or indirectly, for development and administration
of the Corporation's financial plans and all financial arrangements, its cash
deposits and short term investments, its accounting policies and its federal and
state tax returns. The Chief Financial Officer shall also be responsible for the
Corporation's internal control procedures and for its relationship with the
financial community. The Chief Financial Officer shall perform all the duties
incident to the office of chief financial officer of a corporation, those duties
assigned to him by other provisions of these by-laws and such other duties as
may be assigned to him either directly or indirectly by the Board of Directors,
the Audit Committee, the Executive Committee (if any), the Chief Executive
Officer, or the President, or as may be provided by law.
SECTION 6.11. Vice Presidents. The Board of Directors may appoint
such Vice Presidents, including Executive or Senior Vice Presidents, as it may
determine to be in the best interests of the Corporation. In the absence of the
President, or in the event of his inability or refusal to act, the Executive
Vice President, if any, but if there is more than one, the Executive Vice
President who is senior in terms of time as such (or in the event there shall be
no Vice President designated Executive Vice President, any Vice President
designated by the Board) shall perform the duties and exercise the powers of the
President, and when so acting shall have all the powers of and be subject to all
the restrictions upon the President. In the absence of a designation by the
Board of Directors of a Vice President to perform the duties of the President,
or in the event of his absence or inability or refusal to act, the Vice
President who is present and who is senior in terms of time as a Vice President
of the Corporation shall so act. Any Vice President may sign, with the Secretary
or Assistant Secretary, certificates for shares of the Corporation. Each Vice
President shall perform all
15
duties incident to the office of Vice President and shall have such powers and
perform such other duties, as from time to time may be assigned to him by these
by-laws or by the Chief Executive Officer, the President, the Board of
Directors, or the Executive Committee (if any).
SECTION 6.12. General Counsel. The General Counsel shall be the
chief legal advisor of the Corporation and shall have responsibility for the
management of the legal affairs and litigation of the Corporation; and, in
general, he shall perform the duties incident to the office of general counsel
of a corporation and such other duties as may be assigned to him by these
by-laws or by the Chief Executive Officer, the President, the Board of
Directors, or the Executive Committee (if any).
SECTION 6.13. Secretary. The Secretary shall (a) keep the minutes of
the meetings of the stockholders, the Board of Directors, and committees of
directors; (b) see that all notices are duly given in accordance with the
provisions of these by-laws and as required by law; (c) be custodian of the
corporate records and of the seal of the Corporation, and see that the seal of
the Corporation or a facsimile thereof is affixed to all certificates for shares
prior to the issue thereof and to all documents, the execution of which on
behalf of the Corporation under its seal is duly authorized in accordance with
the provisions of these by-laws and attest the affixation of the seal of the
Corporation thereto; (d) keep or cause to be kept a register of the post office
address of each stockholder which shall be furnished by such stockholder; (e)
sign with the Chief Executive Officer, the President, or any Vice President,
certificates for shares of the Corporation, the issue of which shall have been
authorized by resolution of the Board of Directors; (f) have general charge of
the stock transfer books of the Corporation; and (g) in general, shall have such
other powers and shall perform all duties normally incident to the office of
Secretary, and shall have such other powers and perform such other duties, as
from time to time may be assigned to him by these by-laws, the Chief Executive
Officer, the President, the Board of Directors, or the Executive Committee (if
any).
SECTION 6.14. Chief Accounting Officer. The Chief Accounting
Offficer shall be the controller and principal accounting officer of the
Corporation. He shall keep full and accurate accounts of the assets,
liabilities, commitments, receipts, disbursements and other financial
transactions of the Corporation; shall cause regular audits of the books and
records of account of the Corporation and shall supervise the preparation of the
Corporation's financial statements; and, in general, he shall perform the duties
incident to the office of controller of a corporation and such other duties as
may be assigned to him directly or indirectly by the Board of Directors, the
Audit Committee, the Executive Committee (if any), the Chief Executive Officer,
the President, or the Chief Financial Officer, or as may be provided by law.
SECTION 6.15. Treasurer. The Treasurer shall have charge of and be
responsible for all funds, securities, receipts and disbursements of the
Corporation, and shall deposit, or cause to be deposited, in the name of the
Corporation, all moneys or other valuable effects in such banks, trust companies
or other depositories as shall, from time to time, be selected by or under
authority of the Board of Directors; if required by the Board of Directors, he
shall give a bond for the faithful discharge of his duties, with such surety or
sureties as the Board of Directors may determine; he shall keep or cause to be
kept full and accurate records of all receipts and disbursements in books of the
Corporation; and, in general, he shall perform the duties incident to the
officer of treasurer of a
16
corporation and such other duties as may be assigned to him directly or
indirectly by the Board of Directors, the Chief Executive Officer, the
President, or the Chief Financial Officer, or as may be provided by law.
SECTION 6.16. Assistant Secretary or Controller. The Assistant
Secretaries and Assistant Controllers shall, in general, perform such duties and
have such powers as shall be assigned to them by the Secretary or the
Controller, respectively, or by the Chief Executive Officer, the President, the
Board of Directors or the Executive Committee (if any). The Assistant
Secretaries and Assistant Controller shall, in the absence or inability or
refusal to act of the Secretary or Controller, respectively, perform all
functions and duties which such absent officers may delegate, but such
delegation shall not relieve the absent officer from the responsibilities and
liabilities of his office. The Assistant Secretaries may sign, with the Chief
Executive Officer, the President or a Vice President, certificates for shares of
the Corporation, the issue of which shall have been authorized by a resolution
of the Board of Directors. The Assistant Controllers shall respectively, if
required by the Board of Directors, give bonds for the faithful discharge of
their duties in such sums and with such sureties as the Board of Directors shall
determine.
ARTICLE VII
CONTRACTS, CHECKS AND DEPOSITS
SECTION 7.1. Contracts. Except as otherwise provided in these
by-laws or by law or as otherwise directed by the Board of Directors, the Chief
Executive Officer, the President, any Vice President, or the Secretary shall be
authorized to execute and deliver, in the name and on behalf of the Corporation,
all agreements, bonds, contracts, deeds, mortgages, and other instruments,
either for the Corporation's own account or in a fiduciary or other capacity,
and the seal of the Corporation, if appropriate, shall be affixed thereto by any
such officer or the Secretary or an Assistant Secretary. The Board of Directors,
the Chief Executive Officer, or the President or, if designated by the Board of
Directors, the Chief Executive Officer, or the President, any Vice President or
the Secretary, may authorize any other officer, employee, or agent to execute
and deliver, in the name and on behalf of the Corporation, agreements, bonds,
contracts, deeds, mortgages, and other instruments, either for the Corporation's
own account or in a fiduciary or other capacity, and, if appropriate, to affix
the seal of the Corporation thereto. The grant of such authority by the Board of
Directors or any such officer may be general or confined to specific conditions.
Subject to the foregoing provisions, the Board of Directors may authorize any
officer, officers, agent or agents, to enter into any contract or execute and
deliver any instrument in the name of and on behalf of the Corporation, and such
authority may be general or confined to specific instances.
SECTION 7.2. Checks, Etc. All checks, demands, 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 and, if so required by the Board
of Directors, shall be countersigned by such officer or officers or such agent
or agents of the Corporation, and in such manner, as shall be determined by the
Board of Directors.
17
SECTION 7.3. Deposits. All funds of the Corporation not otherwise
employed shall be deposited from time to time to the credit of the Corporation
in such banks, trust companies or other depositories as the Board of Directors
may select. Checks, drafts, bills of exchange, acceptances, notes, obligations,
and orders for payment of money made payable to the Corporation may be endorsed
for deposit to the credit of the Corporation with a duly authorized depository
by the Treasurer and/or such other officers or persons as the Board of Directors
from time to time may designate.
SECTION 7.4. Loans. No loans and no renewals of any loans shall be
contracted on behalf of the Corporation except as authorized by the Board of
Directors. When authorized so to do, any officer or agent of the Corporation may
effect loans and advances for the Corporation from any bank, trust company, or
other institution or from any individual, corporation, or firm, and for such
loans and advances may make, execute, and deliver promissory notes, bonds, or
other evidences of indebtedness of the Corporation. When authorized so to do,
any officer or agent of the Corporation may pledge, hypothecate, or transfer as
security for the payment of any and all loans, advances, indebtedness, and
liabilities of the Corporation, any and all stocks, securities, and other real
or personal property at any time held by the Corporation and to that end may
endorse, assign, and deliver same. Such authority may be general or confined to
specific instances.
ARTICLE VIII
CERTIFICATES OF STOCK
SECTION 8.1. Issuance. The shares of the Corporation shall be
represented by certificates or shall be uncertificated shares evidenced by a
book-entry system maintained by the registrar of such stock, or a combination of
both. Every holder of stock represented by certificates and upon request every
holder of uncertificated shares shall be entitled to a certificate or
certificates showing the number of shares of stock registered in his name on the
books of the Corporation. To the extent that shares are represented by
certificates, the certificates shall be in such form as may be determined by the
Board of Directors, shall be issued in numerical order and shall be entered in
the books of the Corporation as they are issued. They shall exhibit the holder's
name and number of shares (and if the stock of the Corporation shall be divided
into classes or series, the class or series of such shares) and shall be signed
by the Chief Executive Officer, the President or a Vice President and by the
Secretary or an Assistant Secretary or the Controller or Assistant Controller.
Any of or all of the signatures on the certificate may be facsimiles. The stock
record books and the blank stock certificate books shall be kept by the
Secretary, or at the office of such transfer agent or transfer agents as the
Board of Directors may from time to time by resolution determine. In case any
officer, transfer agent or registrar who shall have signed or whose facsimile
signature or signatures shall have been placed upon any such certificate or
certificates shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued by the Corporation, such certificate may
nevertheless be issued by the Corporation with the same effect as if such person
were such officer, transfer agent or registrar at the date of issue.
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If the Corporation shall be authorized to issue more than one class
of stock or more than one 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 represent such class 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 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. Within a reasonable time after
the issuance or transfer of uncertificated stock, the Corporation shall send to
the registered owner thereof a written notice containing the information
required to be set forth or stated on certificates pursuant to this Section 8.1
or otherwise required by statute or with respect to this Section 8.1 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. Except as otherwise expressly provided by law, the rights and
obligations of the holders of uncertificated stock and the rights and
obligations of the holders of certificates representing stock of the same class
and series shall be identical.
All certificates surrendered to the Corporation for transfer shall
be cancelled and no new certificate shall be issued until the former certificate
for a like number of shares shall have been surrendered and cancelled, except
that in the case of a lost, stolen, destroyed or mutilated certificate a new one
may be issued therefor as provided for in these by-laws. Certificates shall not
be issued representing fractional shares of stock.
SECTION 8.2. Lost Certificates. The Board of Directors may direct a
new certificate of stock or uncertificated shares to be issued in place of any
certificate theretofore issued by the Corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates, the Board of
Directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificate, or his
legal representative, to advertise the same in such manner as it shall require
or to give the Corporation a bond in such sum as it may deem sufficient to
indemnify it against any claim that may be made against the Corporation on
account of the alleged loss, theft or destruction of any such certificate or the
issuance of such new certificate or uncertificated shares, or both.
SECTION 8.3. Transfers. Upon surrender to the Corporation or the
transfer agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the Corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and register the
transaction upon its books. Upon presentation to the Corporation or the transfer
agent of the Corporation of an instruction with a request to transfer, pledge or
release an uncertificated share or shares, it shall be the duty of the
Corporation to register the transfer, pledge or release upon its books, and
shall
19
provide the registered owner with such notices as may be required by law.
Transfers of shares shall be made only on the books of the Corporation by the
registered holder thereof, or by his attorney thereunto authorized by power of
attorney and filed with the Secretary of the Corporation or the transfer agent.
SECTION 8.4. Registered Stockholders. The Corporation shall be
entitled to treat the registered owner of any share or shares of stock whether
certificated or uncertificated as the holder in fact thereof and, accordingly,
shall not be bound to recognize any equitable or other claim to or interest in
such share or shares on the part of any other person, whether or not it shall
have express or other notice thereof, except as otherwise provided by the laws
of the State of Delaware.
SECTION 8.5. Regulations Regarding Certificates. 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 capital stock of
the Corporation.
ARTICLE IX
DIVIDENDS
SECTION 9.1. Declaration. Dividends upon the capital stock of the
Corporation, subject to the provisions of the Certificate of Incorporation, if
any, may be declared by the Board of Directors at any regular or special
meeting, pursuant to law. Dividends may be paid in cash, in property or in
shares of capital stock, subject to the provisions of the Certificate of
Incorporation.
SECTION 9.2. Reserve. Before payment of any dividend, there may be
set aside out of any funds of the Corporation available for dividends such sum
or sums as the Board of Directors from time to time, in its absolute discretion,
shall think proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the
Corporation, or for such other purpose as the Board of Directors shall think
conducive to the interest of the Corporation, and the directors may modify or
abolish any such reserve in the manner in which it was created.
ARTICLE X
INDEMNIFICATION
SECTION 10.1. Third Party Actions. This Corporation shall, to the
maximum extent permitted from time to time under the law of the State of
Delaware, indemnify and upon request shall advance expenses to any person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action, suit, proceeding or claim, whether civil, criminal,
administrative or investigative (other than an action by or in the name of the
Corporation) by reason of the fact that such person is or was or has agreed to
be a director, officer, employee, or agent of this Corporation or any of its
direct or indirect subsidiaries or while such person is or was serving at the
20
request of this Corporation as a director, officer, partner, trustee, employee
or agent of any corporation, partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans, against
expenses (including attorney's fees and expenses), judgments, fines, penalties
and amounts paid in settlement actually and reasonably incurred in connection
with the investigation, preparation to defend or defense of such action, suit,
proceeding or claim if such person acted in good faith and in a manner such
person reasonably believed to be in or not opposed to the best interest of the
Corporation, and with respect to any criminal action or proceeding, had no
reasonable cause to believe such person's conduct was unlawful; provided,
however, that the foregoing shall not require this Corporation to indemnify or
advance expenses to any person in connection with any action, suit, proceeding,
claim or counterclaim initiated by or on behalf of such person. Such
indemnification shall not be exclusive of other indemnification rights arising
under any by-laws, agreement, vote of directors or stockholders or otherwise and
shall inure to the benefit of the heirs and legal representatives of such
person. Any person seeking indemnification under this Section 10.1 shall be
deemed to have met the standard of conduct required for such indemnification
unless the contrary shall be established.
SECTION 10.2. Actions By or in the Right of the Corporation. This
Corporation shall, to the maximum extent permitted from time to time under the
law of the State of Delaware, indemnify and upon request shall advance expenses
to any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit, proceeding or claim by or on the
right of the Corporation to procure a judgment in its favor by reason of the
fact that such person is or was or has agreed to be a director, officer,
employee, or agent of this Corporation or any of its direct or indirect
subsidiaries or while such person is or was serving at the request of this
Corporation as a director, officer, partner, trustee, employee or agent of any
corporation, partnership, joint venture, trust or other enterprise, including
service with respect to employee benefit plans, against expenses (including
attorney's fees and expenses), judgments, fines, penalties and amounts paid in
settlement actually and reasonably incurred in connection with the
investigation, preparation to defend or defense of such action, suit, proceeding
or claim if such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interest of the
Corporation, and except that no indemnification shall be made with respect to
any claim, issue, or matter as to which such person shall have been adjudged to
be liable to the Corporation unless and only to the extent that the Delaware
Court of Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Delaware Court of Chancery or
such other court shall deem proper. Such indemnification shall not be exclusive
of other indemnification rights arising under any by-laws, agreement, vote of
directors or stockholders or otherwise and shall inure to the benefit of the
heirs and legal representatives of such person. Any person seeking
indemnification under this Section 10.2 shall be deemed to have met the standard
of conduct required for such indemnification unless the contrary shall be
established.
SECTION 10.3. Successful Defense. To the extent that a director,
officer, employee, or agent of the Corporation has been successful on the merits
or otherwise in defense of any action, suit, or proceeding referred to in
Sections 10.1 or 10.2 or in defense of any claim, issue, or matter
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therein, he shall be indemnified against expenses (including attorneys' fees)
actually and reasonable incurred by him in connection therewith.
SECTION 10.4. Insurance. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against
such person and incurred by such person in any such capacity, or arising out of
such person's status as such, whether or not the Corporation would have the
power to indemnify such person against such liability under the provisions of
this Article X of the by-laws.
SECTION 10.5. Definitions. For purposes of this Article X, reference
to the "Corporation" shall include, in addition to the resulting corporation,
any constituent corporation (including any constituent of a constituent)
absorbed in a consolidation or merger which, if its separate existence has
continued, would have had power and authority to indemnify its directors,
officers and employees or agents, so that any person who is or was a director,
officer, employee or agent of such constituent corporation, or is or was serving
at the request of such constituent corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under the provisions of this
Article X with respect to the resulting or surviving corporation as such person
would have with respect to such constituent corporation if its separate
existence had continued.
For purposes of this Article X, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to any employee benefit plan; and
references to "serving at the request of the Corporation" shall include any
service as a director, officer, employee or agent of the Corporation which
imposes duties on, or involves services by, such director, officer, employee, or
agent with respect to an employee benefit plan, its participants, or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the Corporation" as referred to in this Article
X.
SECTION 10.6. Survival; Preservation of Other Rights. The foregoing
indemnification provisions shall be deemed to be a contract between the
Corporation and each director, officer, employee, and agent who serves in any
such capacity at any time while these provisions as well as relevant provisions
of the Delaware General Corporation Law are in effect and any repeal or
modification thereof shall not affect any right or obligation then existing with
respect to any state of facts then or previously existing or any action, suit,
or proceeding previously or thereafter brought or threatened based in whole or
in part upon any such state of facts. Such a contract right may not be modified
retroactively without the consent of such director, officer, employee, or agent.
The indemnification provided by this Article X shall not be deemed
exclusive of any other rights to which those indemnified may be entitled under
any by-law, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action in
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another capacity while holding officer, and shall continue as to a person who
has ceased to be a director, officer, employee, or agent and shall inure to the
benefit of the heirs, executors, and administrators of such a person.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. Seal. The Board of Directors may provide a suitable
seal, containing the name of the corporation, and the words "Corporate Seal,
Delaware." The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or otherwise reproduced.
SECTION 11.2. Books. The books of the Corporation may be kept
(subject to any provision contained in the statutes) outside the State of
Delaware at such place or places as may be designated from time to time by the
Board of Directors.
SECTION 11.3. Fiscal Year. The fiscal year of the Corporation shall
be such as established from time to time by the Board of Directors.
SECTION 11.4. Resignations. Any director, member of a committee, or
officer may resign at any time. Such resignation shall be made in writing and
shall take effect at the time specified therein, or if no time be specified, at
the time of its receipt by the President or Secretary. The acceptance of a
resignation shall not be necessary to make it effective, unless expressly so
provided in the resignation.
SECTION 11.5. Facsimile Signatures. In addition to the provisions
for the use of facsimile signatures elsewhere specifically authorized in these
by-laws, facsimile signatures of any officer or officers of the Corporation may
be used whenever and as authorized by the Board of Directors.
SECTION 11.6. Reliance upon Books, Reports and Records. Each
director and each member of any committee designated by the Board of Directors
shall, in the performance of his duties, be fully protected in relying in good
faith upon the books of account or reports made to the Corporation by any of its
officers, or by an independent certified public accountant, or by an appraiser
selected with reasonable care by the Board of Directors or by any such
committee, or in relying in good faith upon other records of the Corporation.
ARTICLE XII
AMENDMENT
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If provided in the Certificate of Incorporation of the Corporation,
the Board of Directors shall have the power to adopt, amend and repeal from time
to time by-laws of the Corporation, subject to the right of the stockholders
entitled to vote with respect thereto to amend or repeal such by-laws as adopted
or amended by the Board of Directors.
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