Exhibit 3.3
Adopted March 22, 2001
AMENDED AND RESTATED
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BY-LAWS
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OF
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PRIVATEBANCORP, INC.
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ARTICLE I
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OFFICES OF REGISTERED AGENT
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Section 1.1 Registered Office and Agent. The Corporation shall have and
maintain a registered office in Delaware and a registered agent having a
business office identical with such registered office.
Section 1.2 Other Offices. The Corporation may also have such other
office or offices in Delaware or elsewhere as the Board of Directors may
determine or as the business of the Corporation may require.
ARTICLE II
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STOCKHOLDERS
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Section 2.1 Annual Meeting. An annual meeting of the stockholders shall
be held on the Fourth Thursday in April in each year at the hour of 4:00 P.M.,
or in the event the annual meeting is not held on such date and at such time,
then on the date and at the time designated by the Board of Directors, for the
purpose of electing directors and for the transaction of such other business as
may come before the meeting. If the day fixed for the annual meeting shall be a
legal holiday, such meeting shall be held on the next succeeding business day.
If the directors shall not be elected at the annual meeting, or at any
adjournment thereof, the Board of Directors shall cause the election to be held
as soon thereafter as may be convenient.
Section 2.2 Special Meetings. Special meetings of the stockholders may
be called at any time by the Chairman of the Board, the President or the
Secretary, and shall be called by the Chairman of the Board, the President or
the Secretary at the request, in writing, of a majority of the Board of
Directors. Such request shall state the purpose or purposes of the proposed
meeting.
Section 2.3 Place of Meeting. Meetings of stockholders, whether annual
or special, shall be held at such time and place as may be determined by the
Board of Directors and designated in the call and notice or waiver of notice of
such meeting; provided, that a waiver of notice signed by all stockholders may
designate any time or place as the time and place for the holding of such
meeting. If no designation is made, the place of meeting shall be at the
Corporation's principal place of business.
Section 2.4 Notice of Meeting. Written notice stating the place, date
and hour of the meeting and, in case of a special meeting, the purpose or
purposes for which the meeting is called, shall be given not less than ten nor
more than sixty days before the date of the meeting, or, in the case of a
merger, consolidation or sale, lease or exchange of all or substantially all of
the Corporation's property and assets, at least twenty days before the date of
the meeting, either personally or by mail, by or at the direction of the
Chairman of the Board, the President or the Secretary to each stockholder of
record entitled to vote at such meeting. 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 2.5 Fixing Record Date for Determination of Stockholders. For
the purpose of determining stockholders entitled to notice of or to vote at any
meeting of stockholders, or stockholders entitled to receive payment of any
dividend, or in order to make a determination of stockholders for any other
proper purpose, the Board of Directors may fix in advance a date as the record
date for any such determination of stockholders, such date to be not more than
sixty days prior to the date of a meeting of stockholders, the date of payment
of a dividend or the date on which other action requiring determination of
stockholders is to be taken, as the case may be. In addition, the record date
for a meeting of stockholders shall not be less than ten days, or in the case of
a merger, consolidation or sale, lease or exchange of all or substantially all
of the Corporation's property and
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assets, not less than twenty days immediately preceding such meeting. When a
determination of stockholders entitled to vote at any meeting of stockholders
has been made as provided in this Section, such determination shall apply to any
adjournment thereof; provided, however, that the Board of Directors may fix a
new record date for the adjourned meeting.
Section 2.6 List of Stockholders Entitled to Vote. 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,
and showing the address of each stockholder and the number of shares registered
in the name of each stockholder. Such list shall be open to the examination of
any stockholder, for any purpose germane to the meeting, 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 of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present. The stock ledger shall be the only evidence as to who are the
stockholders entitled to examine the stock ledger, the list of the stockholders,
the corporate books, or to vote at any meeting of the stockholders.
Section 2.7 Quorum and Manner of Acting. Unless otherwise provided by
the Certificate of Incorporation or these By-laws, a majority of the outstanding
shares of the Corporation, entitled to vote on a matter present in person or
represented by proxy, shall constitute a quorum for consideration of such
matter, at any meeting of stockholders; provided, that if less than a majority
of the outstanding shares entitled to vote on a matter are present in person or
represented by proxy at said meeting, a majority of the shares so present in
person or represented by proxy may adjourn the meeting from time to time without
further notice other than announcement at the meeting at which the adjournment
is taken of the time and place of the adjourned meeting. At the adjourned
meeting the Corporation may transact any business which might have been
transacted at the original meeting. If the adjournment is for more than thirty
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. If a quorum is present, the affirmative
vote of the majority of the shares present in person or represented by proxy at
the meeting and entitled to vote shall be the act of the stockholders, unless
the vote of a greater number or voting by classes is required by the General
Corporation Law of the State of Delaware, the Certificate of Incorporation or
these By-laws.
Section 2.8 Voting Shares and Proxies. Each stockholder shall be
entitled to one vote for each share of capital stock held by such stockholder,
except as otherwise provided in the Certificate of Incorporation. Each
stockholder entitled to vote shall be entitled to vote in person, or may
authorize another person or persons to act for him by proxy executed in writing
by such stockholder or by his duly authorized attorney-in-fact, but no such
proxy shall be voted or acted upon after three years from its date, unless the
proxy provides for a longer period.
Section 2.9 Inspectors. At any meeting of stockholders, the chairman of
the meeting may, or upon the request of any stockholder shall, appoint one or
more persons as inspectors for such
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meeting. Such inspectors shall ascertain and report the number of shares
represented at the meeting, based upon the list of stockholders produced at the
meeting in accordance with Section 2.6 hereof and upon their determination of
the validity and effect of proxies, and they shall count all votes, report the
results and do such other acts as are proper to conduct the election and voting
with impartiality and fairness to all the stockholders. Each such report shall
be in writing and signed by at least a majority of the inspectors, the report of
a majority being the report of the inspectors, and such reports shall be prima
facie evidence of the number of shares represented at the meeting and the result
of a vote of the stockholders.
Section 2.10 Voting of Shares by Certain Holders. Shares of its own
stock belonging to the Corporation, unless held by it in a fiduciary capacity,
shall not be voted, directly or indirectly, at any meeting, and shall not be
counted in determining the total number of outstanding shares at any given time.
Shares standing 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. Persons holding stock in a fiduciary capacity
shall be entitled to vote the shares so held. Persons whose stock is pledged
shall be entitled to vote, unless in the transfer by the pledgor on the books of
the Corporation he expressly empowered the pledgee to vote thereon, in which
case only the pledgee, or his Proxy, may represent such stock and vote thereon.
Section 2.11 Action by Stockholders. Any action required to be taken or
which may be taken at a meeting of stockholders must be effected at a duly
called annual or special meeting of the stockholders of the Corporation, and the
power of stockholders to consent in writing, without a meeting, to the taking of
any action is specifically denied.
Section 2.12 Notice of Stockholder Business. At an annual meeting of
the stockholders, only such business shall be conducted as shall have been
properly brought before the meeting. To be properly brought before the annual
meeting of stockholders, business must be (a) specified in the notice of meeting
(or any supplement thereto) given by or at the direction of the Board, (b)
otherwise properly brought before the meeting by or at the direction of the
Board, or (c) otherwise properly brought before the meeting by a stockholder.
For business to be properly brought before an annual meeting of the
stockholders, the stockholder must have the legal right and authority to make
the proposal for consideration at the meeting and the stockholder must have
given timely notice thereof in writing to the Chairman of the Board, the
President or the Secretary of the Corporation. To be timely, a stockholder's
written notice of intent to make a proposal or proposals must be personally
delivered to or mailed by United States mail, certified or registered with
return receipt requested, and received by the Chairman of the Board, the
President or the Secretary of the Corporation at the principal executive offices
of the Corporation not less than 120 days prior to the meeting; provided,
however, that in the event that less than 130 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 tenth (10th) day following the day on which notice of the day of
the annual meeting was mailed or such public disclosure was made. A
stockholder's notice to the Chairman of the Board, the President or the
Secretary shall set forth as to each item of business the stockholder proposes
to bring before the annual meeting (a) a brief description of the business
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desired to be brought before the meeting, and in the case of a nomination for
election of director, such nominee's name and qualifications, and the reasons
for conducting business at the meeting, (b) the name and the record address of
the stockholder or stockholders proposing such business, (c) the number of
shares of stock of the Corporation which are beneficially owned by such
stockholder or stockholders, and (d) any material interest of the stockholder in
such business. The chairman of the meeting may refuse to acknowledge the
proposal of any stockholder not made in compliance with this Section 2.12.
Notwithstanding anything in these By-laws to the contrary, no business shall be
brought before or conducted at an annual meeting except in accordance with the
procedures set forth in this Section 2.12.
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ARTICLE III
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DIRECTORS
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Section 3.1 General Powers. The business and affairs of the Corporation
shall be managed by its Board of Directors, except as may be otherwise provided
by statute or the Certificate of Incorporation.
Section 3.2 Number, Tenure and Qualifications. The number of directors
shall be fifteen (15). The number may be increased or decreased from time to
time by amendment of this Section except as otherwise provided for in the
Amended and Restated Certificate of Incorporation. Commencing with the annual
meeting of stockholders held in 1998, the directors shall be divided into three
(3) classes, as nearly equal in number as possible, with the term of office of
the first class to expire at the 1999 annual meeting of stockholders, the term
of office of the second class to expire at the 2000 annual meeting of
stockholders, and the third class expiring at the 2001 annual meeting of
stockholders. At each annual meeting of stockholders following such initial
classification, directors elected by the stockholders to succeed those directors
whose term expires shall be elected for a term of office to expire at the third
succeeding annual meeting of stockholders after their election. Each director
shall hold office until his successor is elected and qualified or until his
earlier resignation or removal. Directors need not be stockholders or residents
of Delaware.
Section 3.3 Regular Meetings. A regular meeting of the Board of
Directors shall be held, without other notice than this Section, immediately
after and at the same place as the annual meeting of stockholders. The Board of
Directors may provide, by resolution, the time and place, either within or
without Delaware, for the holding of additional regular meetings without other
notice than such resolution.
Section 3.4 Special Meetings. Special meetings of the Board of
Directors may be called at any time by the Chairman of the Board, the President
or any two directors. The person or persons who call a special meeting of the
Board of Directors may designate any place, either within or without Delaware,
as the place for holding such special meeting. In the absence of such a
designation the place of meeting shall be the Corporation's principal place of
business.
Section 3.5 Notice of Special Meetings. Notice stating the place, date
and hour of a special meeting shall be mailed not less than five days before the
date of the meeting, or shall be sent by telegram or be delivered personally or
by telephone not less than two days before the date of the meeting, to each
director, by or at the direction of the person or persons calling the meeting.
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 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 meeting of the Board of
Directors need be specified in the notice or waiver of notice of such meeting.
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Section 3.6 Quorum and Manner of Acting. A majority of the number of
directors as fixed in Section 3.2 hereof shall constitute a quorum for the
transaction of business at any meeting of the Board of Directors; provided, that
if less than a majority of such number of directors are present at said meeting,
a majority of the directors present may adjourn the meeting from time to time
without further notice. The act of the majority of the directors present at a
meeting at which a quorum is present shall be the act of the Board of Directors,
unless otherwise provided in the General Corporation Law of the State of
Delaware, the Certificate of Incorporation or these By-laws.
Section 3.7 Informal Action by Directors. Any action which is required
by law or by these By-laws to be taken at a meeting of the Board of Directors,
or any other action which may be taken at a meeting of the Board of Directors or
any committee thereof, may be taken without a meeting if a consent in writing,
setting forth the action to be taken, shall be signed by all of the directors
entitled to vote with respect to the subject matter thereof, or by all the
members of such committee, as the case may be. Such consent shall have the same
force and effect as a unanimous vote of all of the directors or all of the
members of such committee, as the case may be, at a duly called meeting thereof,
and shall be filed with the minutes of proceedings of the Board or committee.
Section 3.8 Telephonic Meetings. Unless otherwise restricted by the
Certificate of Incorporation or these By-laws, members of the Board of Directors
or of any committee designated by such Board, may participate in a meeting of
such Board 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 pursuant to this
Section shall constitute presence at such meeting.
Section 3.9 Resignations. Any director may resign at any time by giving
written notice to the Board of Directors, the Chairman of the Board, the
President, or the Secretary. Such resignation shall take effect at the time
specified therein; and, unless tendered to take effect upon acceptance thereof,
the acceptance of such resignation shall not be necessary to make it effective.
Section 3.10 Vacancies.
(a) Vacancies and newly-created directorships resulting from any
increase in the authorized number of directors to be elected by all of the
stockholders having the right to vote, voting as a single class, may be filled
by a majority of the directors then in office, although less than a quorum, or
by a sole remaining director, and the directors so chosen shall hold office
until their successors are elected and qualified or until their earlier
resignation or removal.
(b) Whenever the holders of any class or classes of stock or series
thereof are entitled to elect one or more directors by the provisions of the
Certificate of Incorporation, vacancies and newly created directorships of such
class or classes or series may be filled by a majority of the directors elected
by such class or classes or series thereof then in office, or by a sole
remaining director so elected, and the directors so chosen shall hold office
until the next election of the class for which such directors shall have been
chosen, and until their successors shall be elected and qualified or until their
earlier resignation or removal.
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Section 3.11 Removal. Any director or the entire Board of Directors may
be removed, with or without cause, by the holders of a majority of the shares
then entitled to vote at an election of directors, provided, however, that:
(a) if the Board is classified and unless otherwise provided in the
Certificate of Incorporation, the stockholders may affect such removal only for
cause; or
(b) if the Corporation has cumulative voting, and less than the entire
Board of Directors is to be removed, no director may be removed without cause if
the votes cast against his removal would be sufficient to elect him if then
cumulatively voted at an election of the entire Board of Directors, or, if there
be classes of directors, at an election of the class of directors of which he is
a part.
Whenever the holders of any class or series are entitled to elect one or
more directors by the provisions of the Certificate of Incorporation, the
provisions of this Section shall apply, in respect to the removal without cause
of a director or directors so elected, to the vote of the holders of the
outstanding shares of that class or series and not to the vote of the
outstanding shares as a whole.
Section 3.12 Interested Directors.
(a) No contract or transaction between the Corporation and one or more
of its directors or officers, or between the Corporation and any other
corporation, partnership, association, or other organization in which one or
more of its directors or officers are directors or officers, or have a financial
interest, shall be void or voidable solely for this reason, or solely because
the director or officer is present at or participates in the meeting of the
Board or committee thereof which authorizes the contract or transaction, or
solely because his or their votes are counted for such purpose, if:
(1) The material facts as to his relationship or interest and as
to the contract or transaction are disclosed or are known to the Board of
Directors or the committee, and the Board or committee in good faith
authorizes the contract or transaction by the affirmative votes of a
majority of the disinterested directors, even though the disinterested
directors be less than a quorum; or
(2) The material facts as to his relationship or interest and as
to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stockholders; or
(3) The contract or transaction is fair as to the Corporation as
of the time it is authorized, approved or ratified, by the Board of
Directors, a committee thereof, or the stockholders.
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(b) Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or of a committee
which authorizes the contract or transaction.
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ARTICLE IV
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COMMITTEES
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Section 4.1 Appointment and Powers. The Board of Directors may, by
resolution passed by a majority of the whole Board, designate one or more
committees, each committee to consist of one or more of the directors of the
Corporation which, to the extent provided in said resolution or in these By-
laws, shall have and may exercise all the powers and authority of the Board of
Directors in the management of the business and affairs of the Corporation, and
may authorize the seal of the Corporation to be affixed to all papers which may
require it; but no such committee shall have the power or authority in reference
to amending the Certificate of Incorporation (except that any such committee
may, to the extent authorized in the resolution or resolutions providing for the
issuance of such shares of stock adopted by the Board of Directors, fix the
designations 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 thereof, or amending the By-laws;
and, unless the resolution, Bylaws 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 pursuant to Section 253 of the Delaware General Corporation
Law.
Section 4.2 Absence or Disqualification of Committee Member. In the
absence or disqualification of any member of such committee, the member or
members thereof present at any meeting and not disqualified from voting, whether
or not they constitute a quorum, may unanimously appoint another member of the
Board of Directors to act at the meeting in the place of any such absent or
disqualified member.
Section 4.3 Record of Proceedings. The committees shall keep regular
minutes of their proceedings and when required by the Board of Directors shall
report the same to the Board of
Directors.
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ARTICLE V
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OFFICERS
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Section 5.1 Number and Titles. The officers of the Corporation shall be
a Chairman of the Board, a President, a Treasurer and a Secretary. There shall
be such other officers and assistant officers as the Board of Directors may from
time to time deem necessary. Any two or more offices may be held by the same
person.
Section 5.2 Election, Term of Office and Qualifications. The officers
shall be elected annually by the Board of Directors at the first meeting of the
Board of Directors held after the annual meeting of stockholders. If the
election of officers is not held at such meeting, such election shall be held as
soon thereafter as may be convenient. Vacancies may be filled or new offices
created and filled at any meeting of the Board of Directors. Each officer shall
be elected to hold office until his successor shall have been elected and
qualified, or until his earlier death, resignation or removal. Election of an
officer shall not of itself create contract rights.
Section 5.3 Removal. Any officer may be removed by the Board of
Directors whenever in its judgment the best interests of the Corporation will be
served thereby, but such removal shall be without prejudice to the contract
rights, if any, of the person so removed.
Section 5.4 Resignation. Any officer may resign at any time by giving
written notice to the Board of Directors, the Chairman of the Board, the
President or the Secretary. Such resignation shall take effect at the time
specified therein; and, unless tendered to take effect upon acceptance thereof,
the acceptance of such resignation shall not be necessary to make it effective.
Section 5.5 Duties. In addition to and to the extent not inconsistent
with the provisions in these By-laws, the officers shall have such authority, be
subject to such restrictions and perform such duties in the management of the
business, property and affairs of the Corporation as may be determined from time
to time by the Board of Directors.
Section 5.6 Chairman of the Board. The Chairman of the Board shall be
elected by and from the membership of the Board of Directors. He shall be the
chief executive officer of the Corporation unless the Board of Directors
expressly designates otherwise. Subject to the control of the Board of
Directors, the Chairman of the Board shall, in general, supervise and manage the
business and affairs of the Corporation, and he shall see that the resolutions
and directions of the Board of Directors are carried into effect. Except in
those instances in which the authority to execute is expressly delegated to
another officer or agent of the Corporation, or a different mode of execution is
expressly prescribed by the Board of Directors or these By-laws, or where
otherwise required by law, the Chairman of the Board may execute for the
Corporation any contracts, deeds, mortgages, bonds or other instruments which
the Board of Directors has authorized to be executed or the execution of which
is in the ordinary course of the Corporation's business, and they may each
accomplish such execution either under or without the seal of the Corporation
and either individually, together or with the Secretary, any Assistant
Secretary, or any other officer thereunto
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authorized by the Board of Directors or these By-laws. The Chairman of the
Board shall preside at all meetings of the stockholders and of the Board of
Directors (and of any executive committee thereof), and shall perform such other
duties as from time to time shall be prescribed by the Board of Directors. In
the absence of the President or in the event of his inability or refusal to act
or while such office is vacant, the Chairman of the Board shall assume the
duties of the President. The offices of Chairman of the Board and President may
be held by the same person.
Section 5.7 President. The President shall be the chief operating
officer of the Corporation unless the Board of Directors expressly designates
otherwise. Subject to the control of the Board of Directors, the President
shall, in general, assist the Chairman in supervising and managing the business
and affairs of the Corporation and in seeing that the resolutions and directions
of the Board of Directors are carried into effect. In the absence of the
Chairman of the Board or in the event of his inability or refusal to act or
while such office is vacant, the President shall perform the duties of the
Chairman of the Board and when so acting shall have all of the powers and
authority of, and shall be subject to the restrictions upon, the Chairman of the
Board. Except in those instances in which the authority to execute is expressly
delegated to another officer or agent of the Corporation or a different mode of
execution is expressly prescribed by the Board of Directors or these By-laws or
where otherwise required by law, he may execute for the Corporation any
contracts, deeds, mortgages, bonds or other instruments which the Board of
Directors has authorized to be executed or the execution of which is in the
ordinary course of the Corporation's business, and he may accomplish such
execution either under or without the seal of the Corporation and either
individually or with the Secretary, any Assistant Secretary, or any other
officer thereunto authorized by the Board of Directors or these By-laws. In
general, he shall perform such other duties as from time to time may be
prescribed by the Chairman of the Board or the Board of Directors. The offices
of Chairman of the Board and President may be held by the same person.
Section 5.8 Vice Presidents. The Board of Directors may, but need not,
appoint one or more Vice Presidents of the Corporation. Except in those
instances in which the authority to execute is expressly delegated to another
officer or agent of the Corporation or a different mode of execution is
expressly prescribed by the Board of Directors or these By-laws or where
otherwise required by law, the Vice President (or each of them if there are more
than one) may execute for the Corporation any contracts, deeds, mortgages, bonds
or other instruments which the Board of Directors has authorized to be executed,
and he may accomplish such execution either under or without the seal of the
Corporation and either individually or with the Secretary, any Assistant
Secretary, or any other officer thereunto authorized by the Board of Directors
or these By-laws. The Vice Presidents shall perform such other duties as from
time to time may be prescribed by the Chairman of the Board, the President or
the Board of Directors.
Section 5.9 Treasurer. The Treasurer shall be the principal financial
and accounting officer of the Corporation, and shall (a) have charge and custody
of, and be responsible for, all funds and securities of the Corporation; (b)
keep or cause to be kept correct and complete books and records of account
including a record of all receipts and disbursements; (c) deposit all funds and
securities of the Corporation in such banks, trust companies or other
depositaries as shall be selected in accordance with these By-laws; (d) from
time to time prepare or cause to be prepared and render
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financial statements of the Corporation at the request of the Chairman of the
Board, the President or the Board of Directors; and (e) in general, perform all
duties incident to the office of Treasurer and such other duties as from time to
time may be prescribed by the Chairman of the Board, the President or the Board
of Directors. If required by the Board of Directors, the Treasurer shall give a
bond for the faithful discharge of his duties in such sum and with such surety
or sureties as the Board of Directors shall determine.
Section 5.10 Secretary. The Secretary shall (a) keep the minutes of the
proceedings of the stockholders and of the Board of Directors in one or more
books provided for that purpose; (b) see that all notices are duly given in
accordance with the provisions of these By-laws or 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 is affixed to all stock certificates prior to
the issue thereof and to all documents the execution of which on behalf of the
Corporation under its seal is necessary or appropriate; (d) keep or cause to be
kept a register of the name and address of each stockholder, which shall be
furnished to the Corporation by each such stockholder, and the number and class
of shares held by each stockholder; (e) have general charge of the stock
transfer books; and (f) in general, perform all duties incident to the office of
Secretary and such other duties as from time to time may be prescribed by the
Chairman of the Board, the President or the Board of Directors.
Section 5.11 Assistant Treasurers and Assistant Secretaries. In the
absence of the Treasurer or Secretary or in the event of the inability or
refusal of the Treasurer or Secretary to act, the Assistant Treasurer and the
Assistant Secretary (or in the event there is more than one of either, in the
order designated by the Board of Directors or in the absence of such
designation, in the order of their election) shall perform the duties of the
Treasurer and Secretary, respectively, and when so acting, shall have all the
authority of and be subject to all the restrictions upon such office. The
Assistant Treasurers and Assistant Secretaries shall also perform such duties as
from time to time may be prescribed by the Treasurer or the Secretary,
respectively, or by the Chairman of the Board, the President or the Board of
Directors. If required by the Board of Directors, an Assistant Treasurer shall
give a bond for the faithful discharge of his duties in such sum and with such
surety or sureties as the Board of Directors shall determine.
Section 5.12 Salaries. The salaries and additional compensation, if any,
of the officers shall be determined from time to time by the Board of Directors;
provided, that if such officers are also directors such determination shall be
made by a majority of the directors then in office.
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ARTICLE VI
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CERTIFICATES OF STOCK AND THEIR TRANSFER
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Section 6.1 Stock Certificates. The issued shares of the Corporation
shall be represented by certificates, and no class or series of shares of the
Corporation shall be uncertificated shares. Stock certificates shall be in such
form as determined by the Board of Directors and shall be signed by, or in the
name of the Corporation by the Chairman of the Board or the President, and by
the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant
Secretary of the Corporation. Any of or all the signatures on the certificates
may be a facsimile. All certificates of stock shall bear the seal of the
Corporation, which seal may be a facsimile, engraved or printed.
Section 6.2 Transfer of Shares. The shares of the Corporation shall be
transferable. The Corporation shall have a duty to register any such transfer
(a) provided there is presented to the Corporation or its transfer agents (i)
the stock certificate endorsed by the appropriate person or persons; and (ii)
reasonable assurance that such endorsement is genuine and effective; and, (b)
provided that (i) the Corporation has no duty to inquire into adverse claims or
has discharged any such duty; (ii) any applicable law relating to the collection
of taxes has been complied with; and (iii) the transfer is in fact rightful or
is to a bona fide purchaser. Upon registration of such transfer upon the stock
transfer books of the Corporation the certificates representing the shares
transferred shall be canceled and the new record holder, upon request, shall be
entitled to a new certificate or certificates. The terms and conditions
described in the foregoing provisions of this Section shall be construed in
accordance with the provisions of the Delaware Uniform Commercial Code, except
as otherwise provided by the Delaware General Corporation Law. No new
certificate shall be issued until the former certificate or certificates for a
like number of shares shall have been surrendered and canceled, except that in
case of a lost, destroyed, wrongfully taken or mutilated certificate a new one
may be issued therefor upon such terms and indemnity to the Corporation as the
Board of Directors, the Chairman of the Board or the President may prescribe
consistent with applicable law.
14
ARTICLE VII
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DIVIDENDS
---------
Section 7.1 Dividends. Subject to the provisions of the General
Corporation Law of the State of Delaware and the Certificate of Incorporation,
the Board of Directors may declare and pay dividends upon the shares of its
capital stock. Dividends may be paid in cash, in property, or in shares of the
Corporation's capital stock.
15
ARTICLE VII
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FISCAL YEAR
-----------
Section 8.1 Fiscal Year. The fiscal year of the Corporation shall be
fixed by the Board of Directors.
16
ARTICLE IX
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SEAL
----
Section 9.1 Seal. The corporate seal shall have inscribed thereon the
name of the Corporation and the words "Corporate Seal" and "Delaware." The seal
may be used by causing it or a facsimile thereof to be impressed or affixed or
in any manner reproduced.
17
ARTICLE X
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WAIVER OF NOTICE
----------------
Section 10.1 Waiver of Notice. Whenever any notice is required to be
given under these By-laws, the Certificate of Incorporation or the General
Corporation Law of the State of Delaware, a waiver thereof in writing, signed by
the person or persons entitled to such notice, whether before or after the time
stated therein, shall be deemed equivalent to the giving of such notice.
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ARTICLE XI
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INDEMNIFICATION
---------------
Section 11.1 Third-Party Actions. The Corporation shall indemnify any
person who was or is a part or is threatened to be made a party to any
threatened, pending, or completed action, suit, or proceeding, whether civil,
criminal, administrative, or investigative, including all appeals (other than an
action by or in the right of the Corporation) by reason of the fact that the
person 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, trustee,
officer, employee, or agent of another corporation, partnership, joint venture,
trust, or other enterprise, against expenses, including attorneys' fees,
judgment, fines, and amounts paid in settlement actually and reasonably incurred
by him or her in connection with the action, suit, or proceeding; if the person
acted in good faith and in a manner he or she reasonably believed to be in or
not opposed to the best interests of the Corporation and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his or her
conduct was unlawful. The termination of any action, suit, or proceeding by
judgment, order, settlement, conviction, or on a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did not
act in good faith and in a manner that he or she 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 reasonable cause to believe that his or her
conduct was unlawful.
Section 11.2 Derivative Actions. The Corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending, or completed action or suit, including all appeals, by or
in the right of the Corporation to procure a judgment in its favor by reason of
the fact that the person 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, trustee, officer, employee, or agent of another corporation,
partnership, joint venture, trust, or other enterprise, against expenses,
including attorneys' fees, actually and reasonably incurred by the person in
connection with the defense or settlement of the action or suit, if he or she
acted in good faith and in a manner he or she reasonably believed to be in or
not opposed to the best interests of the Corporation. However, no
indemnification shall be made in respect of any claim, issue, or matter as to
which the person is adjudged to be liable for negligence or misconduct in the
performance of his or her duty to the Corporation unless and only to the extent
that the court of common pleas or the court in which the action or suit was
brought determines on application that, despite the adjudication of liability
but in view of all the circumstances of the case, the person is fairly and
reasonably entitled to indemnity for expenses that the court of common pleas or
other court shall deem proper.
Section 11.3 Rights After Successful Defense. To the extent that a
director, trustee, officer, employee, or agent has been successful on the merits
or otherwise in defense of any action, suit, or proceeding referred to in
Section 11.1 or 11.2, above, or in defense of any claim, issue, or matter in
that action, suit, or proceeding, he or she shall be indemnified against
expenses, including attorneys' fees, actually and reasonably incurred by him or
her in connection with the action, suit, or proceeding.
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Section 11.4 Other Determination of Rights. Unless ordered by a court,
any indemnification made under Section 11.1 or 11.2, above, shall be made by the
Corporation only as authorized in the specific case on a determination that
indemnification of the director, trustee, officer, employee, or agent is proper
in the circumstances because he or she has met the applicable standard of
conduct set forth in Section 11.1 or 11.2, above. The determination shall be
made (a) by a majority vote of a quorum consisting of directors who were not and
are not parties to or threatened with the action, suit, or proceeding; (b) if
the described quorum is not obtainable or if a majority vote of a quorum of
disinterested directors so directs, by independent legal counsel in a written
opinion; (c) by the stockholders; or (d) by the court in which the action, suit,
or proceeding was brought.
Section 11.5 Advances of Expenses. Expenses of each person seeking
indemnification under Section 11.1 or 11.2, above, may be paid by the
Corporation as they are incurred, in advance of the final disposition of the
action, suit, or proceeding, as authorized by the Board of Directors in the
specific case, on receipt of an undertaking by or on behalf of the director,
trustee, officer, employee, or agent to repay the amount if it is ultimately
determined that he or she is not entitled to be indemnified by the Corporation.
Section 11.6 Nonexclusiveness; Heirs. The indemnification provided by
this Article shall not be deemed exclusive of, and shall be in addition to, any
other rights to which those seeking indemnification may be entitled as a matter
of law or under the Certificate of Incorporation, these By-Laws, any agreement,
vote of stockholders, any insurance purchased by the Corporation, or otherwise,
both as to action in his or her official capacity and as to action in another
capacity while holding that office, and shall continue as to a person who has
ceased to be a director, trustee, officer, employee, or agent and shall inure to
the benefit of the heirs, executors, and administrators of that person.
20
ARTICLE XII
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MISCELLANEOUS PROVISIONS
------------------------
Section 12.1 Contracts. The Board of Directors may authorize any officer
or agent to enter into any contract or execute and deliver any instrument in the
name of and on behalf of the Corporation, and the Chairman of the Board or the
President may so authorize any officer or agent with respect to contracts or
instruments in the usual and regular course of its business. Such authority may
be general or confined to specific instances.
Section 12.2 Loans. No loan shall be contracted on behalf of the
Corporation and no evidence of indebtedness shall be issued in its name unless
authorized by the Board of Directors. Such authority may be general or confined
to specific instances.
Section 12.3 Checks, Drafts, Etc. All checks, drafts or other orders for
the payment of money, or notes or other evidences of indebtedness issued in the
name of the Corporation shall be signed by such officer or agent as shall from
time to time be authorized by the Board of Directors.
Section 12.4 Deposits. The Board of Directors may select banks, trust
companies or other depositaries for the funds of the Corporation.
Section 12.5 Stock in Other Corporations. Shares of any other
corporation which may from time to time be held by the Corporation may be
represented and voted by the Chairman of the Board or the President, or by any
proxy appointed in writing by the Chairman of the Board or the President, or by
any other person or persons thereunto authorized by the Board of Directors, at
any meeting of stockholders of such corporation or by executing written consents
with respect to such shares where stockholder action may be taken by written
consent. Shares represented by certificates standing in the name of the
Corporation may be endorsed for sale or transfer in the name of the Corporation
by the Chairman of the Board, the President or by any other officer thereunto
authorized by the Board of Directors. Shares belonging to the Corporation need
not stand in the name of the Corporation, but may be held for the benefit of the
Corporation in the name of any nominee designated for such purpose by the Board
of Directors.
Section 12.6 Miscellaneous. Use of the masculine pronoun shall be deemed
to include usage of the feminine pronoun where appropriate.
21
ARTICLE XII
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AMENDMENT
---------
Section 13.1 Procedure. These By-laws may be altered, amended or
repealed and new by-laws may be adopted by the Board of Directors.
Section 13.2 Amendment by Stockholders. Notwithstanding any other
provision of the Amended and Restated Certificate of Incorporation or these By-
laws of the Corporation to the contrary and notwithstanding that a lesser
percentage may be specified by law, in the event these By-laws shall be amended
by vote of stockholders, the affirmative vote of the holders of at least two-
thirds (2/3) of the voting power of the outstanding shares of all classes of
stock of the Corporation, voting together as a single class, shall be required
to amend or repeal or adopt any provision inconsistent with Sections 2.2, 2.11,
2.12, 3.2, 3.10 or 13.2 of these By-laws.
22