EXHIBIT 3.2
BY-LAWS
OF
RYERSON TULL, INC.
(AS AMENDED TO AND INCLUDING JUNE 10, 1996)
ARTICLE I
OFFICES
Section 1. The registered office of the Corporation shall be in the City
of Wilmington, County of New Castle, State of Delaware. 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
STOCKHOLDERS
Section 1. Time and Place of Meetings. All meetings of the stockholders
for the election of Directors or for any other purpose shall be held at such
time and place, within or without the State of Delaware, as shall be designated
by the Board of Directors.
Section 2. Annual Meetings; Nomination of Directors. An annual meeting of
stockholders shall be held for the purpose of electing Directors and for the
transaction of only such other business as is properly brought before the
meeting in accordance with these By-laws. The date of the annual meeting shall
be such date as may be determined by the Board of Directors.
To be properly brought before the meeting, business must be either (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. In addition to any other applicable requirements, for
business to be properly brought before an annual meeting by a stockholder, the
stockholder must have given timely notice thereof in writing to the Corporate
Secretary of the Corporation. To be timely, a stockholder's notice must be
delivered to or mailed and received at the principal executive offices of the
Corporation not less than ninety days prior to the meeting; provided, however,
that if less than one hundred five days' notice or prior public disclosure of
the date of a meeting is given or made to stockholders, such stockholder's
notice shall also be deemed to be timely as to such meeting if so delivered or
received not less than ninety days prior to the day and month during that year
which is the same as the day and month of the prior year's annual meeting.
A stockholder's notice to the Corporate Secretary shall set forth as to each
matter the stockholder proposes to bring before the annual meeting (i) a brief
description of the business desired to be brought before the annual meeting and
the reasons for conducting such business at the annual meeting, (ii) the name
and record address of the stockholder proposing such business, (iii) the class
and number of shares of the Corporation which are beneficially owned by the
stockholder and (iv) any material interest of the stockholder in such business.
Notwithstanding anything in the By-laws to the contrary, no business shall
be conducted at the annual meeting except in accordance with the procedures set
forth in this Article II, Section 2, provided, however, that nothing in this
Article II, Section 2 shall be deemed to preclude discussion by any stockholder
of any business properly brought before the annual meeting.
The Chairman of an annual meeting shall, if the facts warrant, in his or
her sole discretion, determine and declare to the meeting that business was not
properly brought before the meeting in accordance with the provisions of this
Article II, Section 2, and if he or she should so determine, he or she shall so
declare to the meeting and any such business not properly brought before the
meeting shall not be transacted.
Only persons who are nominated in accordance with the following procedures
shall be eligible for election as Directors. Nominations of persons for
election to the Board of the Corporation at the annual meeting may be made at a
meeting of stockholders by or at the direction of the Board of Directors by any
nominating committee or person appointed by the Board or by any stockholder of
the Corporation entitled to vote for the election of Directors at the meeting
who complies with the notice procedures set forth in this Article II, Section 2.
Such nominations, other than those made by or at the direction of the Board,
shall be made pursuant to timely notice in writing to the Corporate Secretary of
the Corporation. 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 ninety days prior to the meeting; provided, however, that if less than
one hundred five days' notice or prior public disclosure of the date of a
meeting is given or made to stockholders, such stockholder's notice shall also
be deemed to be timely as to such meeting if so delivered or received not less
than ninety days prior to the day and month during that year which is the same
as the day and month of the prior year's annual meeting. Such stockholder's
notice to the Corporate Secretary shall set forth: (a) as to each person whom
the stockholder proposes to nominate for election or re-election as a Director,
(i) the name, age, business address and residence address of the person, (ii)
the principal occupation or employment of the person, (iii) the class and number
of shares of capital stock of
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the Corporation which are beneficially owned by the person, (iv) such person's
signed consent to serve as a Director of the Corporation if elected and (v) any
other information relating to the person that is required to be disclosed in
solicitations for proxies for election of Directors pursuant to Regulation 14A
under the Securities Exchange Act of 1934, as amended; and (b) as to the
stockholder giving the notice, (i) the name and record address of such
stockholder and (ii) the class and number of shares of capital stock of the
Corporation which are beneficially owned by such stockholder. The Corporation
may require any proposed nominee to furnish such other information as may
reasonably be required by the Corporation to determine the eligibility of such
proposed nominee to serve as Director of the Corporation. No person shall be
eligible for election as a Director of the Corporation unless nominated in
accordance with the procedures set forth herein.
The Chairman of the meeting shall, if the facts warrant, in his or her sole
discretion, determine and declare to the meeting that a nomination was not made
in accordance with the foregoing procedure, and if he or she should so
determine, he or she shall so declare to the meeting and the defective
nomination shall be disregarded.
Section 3. Special Meetings. Except as otherwise required by law, special
meetings of the stockholders of the Corporation may be called only by (i) the
Board of Directors pursuant to a resolution approved by the affirmative vote of
a majority of the Directors then in office, (ii) the Chairman of the Board,
(iii) the Vice Chairman of the Board if one is elected or (iv) the President.
Only those matters set forth in the notice of the special meeting may be
considered or acted upon at such special meeting, except as otherwise provided
by law.
Section 4. Notice of Meetings. Written notice of each meeting of the
stockholders stating the place, date and time of the meeting shall, unless
otherwise required by law, be given not less than ten nor more than sixty days
before the date of the meeting to each stockholder entitled to vote at such
meeting. The notice of any special meeting of stockholders shall state the
purpose or purposes for which the meeting is called. If mailed, such notice
shall be deemed to be delivered to a stockholder when deposited in the United
States mail in a sealed envelope addressed to the stockholder at his or her
address as it appears on the records of the Corporation with postage thereon
paid.
Section 5. 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 for the transaction of business at any meeting
of the stockholders, except as otherwise provided by law, by the Corporation's
Restated Certificate of Incorporation, as the same now exists or may
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hereafter be amended (the "Certificate of Incorporation"), or by these By-laws.
If a quorum is not present or represented, the holders of the stock present in
person or represented by proxy at the meeting and entitled to vote thereat shall
have power, by the affirmative vote of the holders of a majority of such stock,
to adjourn the meeting to another time and/or place, without notice other than
announcement at the meeting, until a quorum shall be present or represented. At
such adjourned meeting, at which a quorum shall be present or represented, any
business may be transacted which might have been transacted at the 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.
Section 6. Voting. At all meetings of the stockholders, each holder of
record on the record date for the meeting shall be entitled to vote as set forth
in the Certificate of Incorporation (including any Certificates of Designations)
or as otherwise required by law, in person or by proxy, the shares of voting
stock owned of record by such stockholder on the record date. When a quorum is
present or represented at any meeting, the vote of the holders of a majority of
the stock voted on such matter in person or by proxy shall decide any question
brought before such meeting, unless the question is one upon which, by express
provision of law or of the Certificate of Incorporation, a different vote is
required, in which case such express provision shall govern and control the
decision of such question, and except that Directors shall be elected by a
plurality of the votes of the stock present in person or represented by proxy
and entitled to vote on the election of Directors. If the Certificate of
Incorporation provides for more or less than one vote for any share of stock, on
any matter, every reference in the Certificate of Incorporation or these By-laws
to a majority or other proportion of stock shall refer to such majority or other
proportion of the votes of such stock.
ARTICLE III
DIRECTORS
Section 1. General Powers. The business and affairs of the Corporation
shall be managed and controlled by or under the direction of a 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 2. Number of Directors. The number of Directors of the
Corporation shall be fixed from time to time by the vote of a
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majority of the entire Board of Directors, but such number shall in no case be
less than three. Any such determination made by the Board of Directors shall
continue in effect unless and until changed by the Board of Directors, but no
such change shall affect the term of any Director then in office.
Section 3. Classification of Directors. The Directors shall be divided
into three classes, designated Class I, Class II and Class III. Each class shall
consist, as nearly as may be possible, of one-third of the total number of
Directors constituting the entire Board of Directors. At each annual meeting of
stockholders, successors to the class of Directors whose term expires at that
annual meeting shall be elected for a three-year term. If the authorized number
of Directors is changed, any increase or decrease shall be apportioned among the
classes so as to maintain the number of Directors in each class as nearly equal
as possible. Any Director of any class elected to fill a vacancy resulting from
an increase in such class or otherwise shall hold office for a term that shall
coincide with the remaining term of the class into which such Director is
elected, but in no case will a decrease in the number of Directors shorten the
term of any incumbent Director.
Section 4. Qualification; Term of Office; Election; Removal from Office.
Directors need not be residents of Delaware or stockholders of the Corporation.
A Director shall hold office until the annual meeting for the year in which his
or her term expires and until his or her successor shall be elected and shall
qualify, subject, however, to earlier death, resignation or removal from office.
Elections of Directors need not be by written ballot. Any Director may be
removed only for cause by the affirmative vote of the holders of not less than
80% of the voting power represented by all the shares of stock of the
Corporation outstanding and entitled to vote for the election of Directors,
given at a duly called annual or special meeting of stockholders.
Section 5. Vacancies. All vacancies and newly created directorships
resulting from any increase in the number of Directors shall be filled only by a
majority of the Directors then in office (even if less than a quorum), and each
Director so chosen shall hold office until his or her successor is elected and
qualified or until his or her earlier resignation or removal. If there are no
Directors in office, then an election of Directors may be held in the manner
provided by law. Any Director elected to fill a vacancy resulting from an
increase in the number of Directors or otherwise shall hold office for a term
that shall coincide with the remaining term of the class into which such
Director is elected.
Section 6. Place of Meetings. The Board of Directors may hold meetings,
whether regular or special, within or without the State of Delaware.
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Section 7. Regular Meetings. The Board of Directors shall hold a regular
meeting, to be known as the annual meeting, immediately following each annual
meeting of the stockholders. Other regular meetings of the Board of Directors
shall be held at such time and place as shall from time to time be determined by
the Board. No notice of regular meetings need be given.
Section 8. Special Meetings. Special meetings of the Board may be called
by the Chairman of the Board, the Vice Chairman of the Board, a majority of the
Directors or the President and Chief Executive Officer. Special meetings shall
be called by the Corporate Secretary on the written request of a majority of the
Board of Directors. Notice of special meetings shall be given at least one day
before any such meeting. Such notice may be given by telephone, by facsimile or
other electronic means, by messenger or by mail and, if given by messenger or
mail shall be deemed delivered when presented to the messenger or deposited in
the United States mail in a sealed envelope addressed to the Director with
postage thereon paid.
Section 9. Quorum. At all meetings of the Board of Directors a majority of
the total number of Directors shall constitute a quorum for the transaction of
business and the act of a majority of the Directors present at any meeting at
which there is a quorum shall be the act of the Board of Directors, except as
may be otherwise specifically provided by law, the Certificate of Incorporation
or these By-laws. 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 10. Organization. Except as provided in Article III, Section 5 of
these By-laws, the Directors shall designate from among their number a Chairman
of the Board, who shall preside at all meetings of the stockholders and of the
Board of Directors of the Corporation and who, if he or she is an employee of
the Corporation, shall exercise all of the powers and duties conferred on the
Chairman of the Board by the provisions of these By-laws. If a Chairman of the
Board is not elected or, if elected, is not present, the Vice Chairman of the
Board, if any, or if the Vice Chairman of the Board is not present, the
President and Chief Executive Officer or, in the absence of the President and
Chief Executive Officer, a Director chosen by a majority of the Directors
present, shall act as chairman at meetings of the Board of Directors. If the
person selected by the Directors as the Chairman of the Board is not, or ceases
to be, an employee of the Corporation, then, notwithstanding any other provision
of these By-laws to the contrary, he or she shall exercise only such powers and
duties conferred on the Chairman of the Board by these By-laws as the Directors
shall determine by resolution duly adopted and any
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other powers and duties, including those of chief executive officer of the
Corporation, shall be exercised by the President and Chief Executive Officer of
the Corporation.
Immediately upon the Chairman of the Board's death, physical or mental
incapacity, or other inability to act (other than due to absence for a brief and
identifiable period), the Chairman of the committee responsible for recommending
candidates to fill vacancies on the Board of Directors of the Corporation (the
"Nominating Committee Chairman") shall assume the position of Chairman of the
Board and responsibility for performing all functions, authorities and duties
thereof, and shall serve in such capacity until his or her successor is duly
elected and qualified pursuant to Article III, Section 4 and any other
applicable provision of these By-laws or until his or her earlier death,
resignation or removal. The Nominating Committee Chairman shall have sole
discretion to determine, at any time and from time to time, whether the Chairman
of the Board is physically or mentally incapacitated, otherwise unable to act,
or absent for other than a brief and identifiable period and shall, immediately
upon making such a determination or learning of the death of the Chairman of the
Board, notify each member of the Board of Directors and each officer of the
Corporation of the relevant facts and circumstances.
Section 11. Committees. The Board of Directors, by resolution adopted by a
majority of the whole Board, may designate one or more committees, each such
committee to consist of one or more Directors. Except as expressly limited by
the General Corporation Law of the State of Delaware or the Certificate of
Incorporation, any such committee shall have and may exercise such powers as the
Board of Directors may determine and specify in the resolution designating such
committee. The Board of Directors, by resolution adopted by a majority of the
whole Board, also may designate one or more additional Directors as alternate
members of any such committee to replace any absent or disqualified member at
any meeting of the committee, and at any time may change the membership of any
committee or amend or rescind the resolution designating the committee. In the
absence or disqualification of a member or alternate member of a committee, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not such member or members constitute a quorum, may
unanimously appoint another Director to act at the meeting in the place of any
such absent or disqualified member, provided that the Director so appointed
meets any qualifications stated in the resolution designating the committee.
Each committee shall keep a record of proceedings and report the same to the
Board of Directors to such extent and in such form as the Board of Directors may
require. Unless otherwise provided in the resolution designating a committee, a
majority of all of the members of any such committee may select its Chairman,
fix its rules or procedures, fix the time
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and place of its meetings and specify what notice of meetings, if any, shall be
given.
Section 12. 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
may be taken without a meeting, if all members of the Board or committee, as the
case may be, consent thereto in writing, and the writing or writings are filed
with the minutes of proceedings of the Board or committee.
Section 13. Attendance by Telephone. Members of the Board of Directors, or
of any committee, may participate in a meeting of the Board of Directors, or of
such 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 such participation in a meeting shall constitute presence in
person at the meeting.
Section 14. Compensation. The Board of Directors shall have the authority
to fix the compensation of Directors, which may include reimbursement of their
expenses, if any, of attendance of each meeting of the Board of Directors or of
a committee.
ARTICLE IV
OFFICERS
Section 1. Enumeration. The officers of the Corporation shall be chosen by
the Board of Directors and shall be a President and Chief Executive Officer, a
Corporate Secretary, a Treasurer and a Controller. The Board of Directors may
also elect a Chairman of the Board, a Vice Chairman, one or more Assistants to
the Chairman, one or more Vice Presidents, a General Counsel, one or more
Assistant Corporate Secretaries and Assistant Treasurers and such other officers
and agents as it shall deem appropriate. Any number of offices may be held by
the same person.
Section 2. Term of Office. The officers of the Corporation shall be
elected at the annual meeting of the Board of Directors and shall hold office
until their successors are elected and qualified, or until their earlier death,
resignation or removal from office. Any officer elected or appointed by the
Board of Directors may be removed at any time by the Board of Directors. Any
vacancy occurring in any office of the Corporation required by this Article IV
shall be filled by the Board of Directors, and any vacancy in any other office
may be filled by the Board of Directors.
Section 3. Chairman of the Board. Subject to the provisions of Article
III, Section 10 of these By-laws, the Chairman of the
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Board, when elected, shall preside at all meetings of the stockholders and of
the Board of Directors and shall have such other functions, authority and duties
as may be prescribed by the Board of Directors.
Section 4. Vice Chairman of the Board. The Vice Chairman of the Board
shall, in the case of absence of the Chairman of the Board for any brief and
identifiable period, have and exercise the powers and duties of the Chairman of
the Board. He or she shall have such other duties and powers as may be assigned
to him by the Board of Directors or the Chairman of the Board.
Section 5. President and Chief Executive Officer. The President and Chief
Executive Officer shall be the chief executive officer of the Corporation and,
as such, shall have general supervision, direction and control of the business
and affairs of the Corporation, subject to the control of the Board of
Directors, and such other duties as customarily appertain to the office of the
chief executive of a business corporation or as may be prescribed by the Board
of Directors or the Chairman of the Board.
Section 6. Executive and Senior Vice Presidents. Each Executive Vice
President shall have such duties and powers as may be assigned to him or her by
the Board of Directors, the Chairman of the Board, the Vice Chairman of the
Board or the President and Chief Executive Officer. An Executive Vice President,
designated by the Board of Directors, shall (in the event of absence, death or
other inability to act of the President and Chief Executive Officer) have and
exercise the powers and duties of the President and Chief Executive Officer.
Each Senior Vice President shall have such duties and powers as may be
assigned to him or her by the Board of Directors, the Chairman of the Board, the
Vice Chairman of the Board or the President and Chief Executive Officer.
Section 7. Vice Presidents. Each Vice President shall perform such duties
and have such other powers as may from time to time be prescribed by the Board
of Directors, the Chairman of the Board, the Vice Chairman of the Board or the
President and Chief Executive Officer.
Section 8. Corporate Secretary. The Corporate Secretary shall keep a
record of all proceedings of the stockholders of the Corporation and of the
Board of Directors, and shall perform like duties for any committee when
required. The Corporate Secretary shall give, or cause to be given, notice, if
any, of all meetings of the stockholders and shall perform such other duties as
may be prescribed by the Board of Directors, the Chairman of the Board, the Vice
Chairman of the Board or the President and Chief Executive Officer. The
Corporate Secretary shall have custody of the
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corporate seal of the Corporation and the Corporate Secretary, or in the absence
of the Corporate Secretary any Assistant Corporate Secretary, shall have
authority to affix the same to any instrument requiring it, and when so affixed
it may be attested by the signature of the Corporate Secretary or an Assistant
Corporate Secretary. The Board of Directors may give general authority to any
other officer to affix the seal of the Corporation and to attest such affixing
of the seal.
Section 9. Assistant Corporate Secretary. The Assistant Corporate
Secretary, or if there be more than one, the Assistant Secretaries in the order
determined by the Board of Directors (or if there be no such determination, then
in the order of their election), shall, in the absence of the Corporate
Secretary or in the event of the Corporate Secretary's inability or failure to
act, perform the duties and exercise the powers of the Corporate Secretary and
shall perform such other duties as may from time to time be prescribed by the
Board of Directors, the Chairman of the Board, the Vice Chairman of the Board,
the President and Chief Executive Officer or the Corporate Secretary.
Section 10. Treasurer. The Treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be
ordered by the Board of Directors, keeping proper records of such disbursements,
and shall render to the Chairman of the Board, Vice Chairman of the Board, the
Chairman of any committee, the President and Chief Executive Officer, the
officer designated by the Board of Directors as Chief Financial Officer, if any,
and the Board of Directors and any committee at their regular meetings or when
the Board of Directors so requires, an account of all transactions as Treasurer
and of the financial condition of the Corporation. The Treasurer shall perform
such other duties as may from time to time be prescribed by the Board of
Directors, the Chairman of the Board, the Vice Chairman of the Board, the
President and Chief Executive Officer or the Chief Financial Officer.
Section 11. Assistant Treasurer. The Assistant Treasurer, or if there
shall be more than one, the Assistant Treasurers in the order determined by the
Board of Directors (or if there be no such determination, then in the order of
their election), shall, in the absence of the Treasurer or in the event of the
Treasurer's inability, failure or refusal to act, perform the duties and
exercise the powers of the Treasurer and shall perform such other duties and
have such other powers as may from time to time be prescribed by the Board of
Directors, the Chairman of the Board,
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the Vice Chairman of the Board, the President and Chief Executive Officer or the
Treasurer.
Section 12. Assistant to the Chairman. The Assistant to the Chairman of
the Board shall have and exercise such powers and duties as may be assigned to
him or her by the Chairman of the Board.
Section 13. General Counsel. The General Counsel, if there be one, shall
be responsible for the legal affairs of the Corporation and shall have such
other duties as from time to time may be assigned to him or her by the Chairman
of the Board, the Vice Chairman of the Board, the President and Chief Executive
Officer or the Board of Directors.
Section 14. Controller. The Controller shall be the chief accounting
officer of the Corporation. He or she shall, when proper, approve all bills for
purchases, payrolls, and similar instruments providing for disbursement of money
by the Corporation, for payment by the Treasurer. He or she shall be in charge
of and maintain books of account and accounting records of the Corporation. He
or she shall perform such other acts as are usually performed by a Controller of
a corporation. He or she shall render to the Chairman of the Board, the Vice
Chairman of the Board, the Chairman of any committee, the President and Chief
Executive Officer, the Chief Financial Officer, the Board of Directors and any
committee, such reports as any thereof may require.
Section 15. Other Officers. Any officer who is elected or appointed from
time to time by the Board of Directors and whose duties are not specified in
these By-laws shall perform such duties and have such powers as may be
prescribed from time to time by the Board of Directors, the Chairman of the
Board, the Vice Chairman of the Board or the President and Chief Executive
Officer.
Section 16. Surety Bonds. The Board of Directors may by resolution,
require any officers of the Corporation to give bonds for the faithful discharge
of their duties in such sums and with such sureties as the Board of Directors
shall determine, the expense of which shall be paid by the Corporation.
ARTICLE V
CERTIFICATES OF STOCK
Section 1. Form. The shares of the Corporation shall be represented by
certificates; provided, however, that the Board of Directors may provide by
resolution or resolutions that some or all of any or all classes or series of
the Corporation's stock shall be uncertificated shares. Certificates of stock
in the Corporation,
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if any, shall be signed by or in the name of the Corporation by the Chairman of
the Board, the President and Chief Executive Officer or a Vice President and by
the Treasurer, an Assistant Treasurer, the Corporate Secretary or an Assistant
Corporate Secretary of the Corporation. The signatures of the Chairman of the
Board, the President and Chief Executive Officer or a Vice President and the
Treasurer, an Assistant Treasurer, the Corporate Secretary or an Assistant
Corporate Secretary may be facsimiles. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, the certificate may be issued by the
Corporation with the same effect as if such officer, transfer agent or registrar
were such officer, transfer agent or registrar at the date of its issue.
Section 2. Transfer. 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 record the
transaction on its books.
Section 3. Replacement. In case of the loss, destruction or theft of a
certificate for any stock of the Corporation, a new certificate of stock or
uncertificated shares in place of any certificate therefor issued by the
Corporation may be issued upon satisfactory proof of such loss, destruction or
theft and upon such terms as the Board of Directors may prescribe. The Board of
Directors may in its discretion require the owner of the lost, destroyed or
stolen certificate, or his or her legal representative, to give the Corporation
a bond, in such sum and in such form and with such surety or sureties as it may
direct, to indemnify the Corporation against any claim that may be made against
it with respect to a certificate alleged to have been lost, destroyed or stolen.
ARTICLE VI
INDEMNIFICATION
Section 1. Each person who was or is made a party or is threatened to be
made a party to or is involved in or called as a witness in any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, and any appeal therefrom (hereinafter,
collectively a "proceeding"), by reason of the fact that he or she, or a person
of whom he or she is the legal representative, is, was or had agreed to become a
Director, officer, employee or agent of the Corporation or is or was serving at
the request of the Corporation
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as a Director, officer, employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with
respect to employee benefit plans, shall be indemnified and held harmless by the
Corporation to the fullest extent permitted under the General Corporation Law of
the State of Delaware (the "DGCL"), as the same now exists or may hereafter be
amended (but, in the case of any such amendment, only to the extent that such
amendment permits the Corporation to provide broader indemnification rights than
the DGCL permitted the Corporation to provide prior to such amendment), against
all expenses (including attorneys' fees), liabilities and losses, judgments,
fines, excise taxes or penalties pursuant to the Employee Retirement Income
Security Act of 1974, as amended, and amounts paid or to be paid in settlement,
reasonably incurred or suffered by such person in connection therewith; provided
that, except as explicitly provided herein, prior to a Change in Control, as
defined herein, a person seeking indemnity in connection with a proceeding (or
part thereof) initiated by such person against the Corporation or any Director,
officer, employee or agent of the Corporation shall not be entitled thereto
unless the Corporation has joined in or consented to such proceeding (or part
thereof). For purposes of this Article, a "Change in Control of the
Corporation" shall be deemed to have occurred if, after June 10, 1996, (i) any
"Person" (as is used in Sections 13(d) and 14(d) of the Securities Exchange Act
of 1934, as amended) becomes (except in a transaction approved in advance by the
Board of Directors of the Corporation) the beneficial owner (as defined in Rule
13d-3 under such Act), directly or indirectly, of securities of the Corporation
representing 20% or more of the combined voting power of the Corporation's then
outstanding securities or (ii) during any period of two consecutive years,
individuals who at the beginning of such period constitute the Board of
Directors of the Corporation cease for any reason to constitute at least a
majority thereof unless the election of each Director who was not a Director at
the beginning of the period was approved by a vote of at least two-thirds of the
Directors then still in office who were Directors at the beginning of the
period.
Any indemnification under this Section 1 (unless ordered by a court) shall
be paid by the Corporation unless within 60 days of such request for
indemnification a determination is made (i) by the Board of Directors by a
majority vote of a quorum consisting of Directors who were not parties to such
proceeding, (ii) if such quorum is not obtainable, or even if obtainable a
quorum of disinterested Directors so directs, by independent legal counsel (who
may be the regular counsel of the Corporation) in a written opinion or (iii) by
the stockholders, that indemnification of such person is not proper under the
circumstances because such person has not met the necessary standard of conduct
under Delaware law; provided, however, that following a Change in Control of the
Corporation, with respect to all matters thereafter arising out of acts,
omissions or events prior to the Change in Control of the
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Corporation concerning the rights of any person seeking indemnification under
this Section 1, such determination shall be made by special independent counsel
selected by such person and approved by the Corporation (which approval shall
not be unreasonably withheld), which counsel has not otherwise performedservices
(other than in connection with similar matters) within the five years preceding
its engagement to render such opinion for such person or for the Corporation or
any affiliates (as such term is defined in Rule 405 under the Securities Act of
1933, as amended) of the Corporation (whether or not they were affiliates when
services were so performed) ("Independent Counsel"). Unless such person has
theretofore selected Independent Counsel pursuant to this Section 1 and such
Independent Counsel has been approved by the Corporation, legal counsel approved
by a resolution or resolutions of the Board of Directors prior to a Change in
Control of the Corporation shall be deemed to have been approved by the
Corporation as required. Such Independent Counsel shall determine as promptly
as practicable whether and to what extent such person would be permitted to be
indemnified under applicable law and shall render its written opinion to the
Corporation and such person to such effect. The Corporation agrees to pay the
reasonable fees of the Independent Counsel referred to above and to fully
indemnify such Independent Counsel against any and all expenses, claims,
liabilities and damages arising out of or relating to this Article or its
engagement pursuant hereto.
Section 2. Expenses. Expenses, including attorneys' fees, incurred by a
person referred to in Section 1 of this Article in defending or otherwise being
involved in a proceeding shall be paid by the Corporation in advance of the
final disposition of such proceeding, including any appeal therefrom, upon
receipt of an undertaking (the "Undertaking") by or on behalf of such person to
repay such amount if it shall ultimately be determined that he or she is not
entitled to be indemnified by the Corporation.
Section 3. Right of Claimant to Bring Suit. If a claim under Section 1
hereof is not paid in full by the Corporation within 60 days after a written
claim has been received by the Corporation or if expenses pursuant to Section 2
hereof have not been advanced within 10 days after a written request for such
advancement accompanied by the Undertaking has been received by the Corporation,
the claimant may at any time thereafter bring suit against the Corporation to
recover the unpaid amount of the claim or the advancement of expenses. (If the
claimant is successful, in whole or in part, in such suit or any other suit to
enforce a right for expenses or indemnification against the Corporation or any
other party under any other agreement, such claimant shall also be entitled to
be paid the reasonable expense of prosecuting such claim.) It shall be a
defense to any such action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its final
disposition where
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the required Undertaking has been tendered to the Corporation) that the claimant
has not met the standards of conduct which make it permissible under the DGCL
for the Corporation to indemnify the claimant for the amount claimed. After a
Change in Control, the burden of proving such defense shall be on the
Corporation, and any determination by the Corporation (including its Board of
Directors, independent legal counsel or its stockholders) that the claimant had
not met the applicable standard of conduct required under the DGCL shall not be
a defense to the action nor create a presumption that claimant had not met such
applicable standard of conduct.
Section 4. Non-Exclusivity of Rights. The rights conferred on any person
by this Article shall not be exclusive of any other right which such person may
have or hereafter acquire under any statute, provision of the Certificate of
Incorporation, By-laws, agreement, vote of stockholders or disinterested
Directors or otherwise. The Board of Directors shall have the authority, by
resolution, to provide for such other indemnification of Directors, officers,
employees or agents as it shall deem appropriate.
Section 5. Insurance. The Corporation may purchase and maintain insurance
to protect itself and any Director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or other
enterprise against any expenses, liabilities or losses, whether or not the
Corporation would have the power to indemnify such person against such expenses,
liabilities or losses under the DGCL.
Section 6. Enforceability. The provisions of this Article shall be
applicable to all proceedings commenced after its adoption, whether such arise
out of events, acts, omissions or circumstances which occurred or existed prior
or subsequent to such adoption, and shall continue as to a person who has ceased
to be a Director, officer or employee and shall inure to the benefit of the
heirs, executors and administrators of such person. This Article shall be
deemed to grant each person who, at any time that this Article is in effect,
serves or agrees to serve in any capacity which entitles him or her to
indemnification hereunder rights against the Corporation to enforce the
provisions of this Article, and any repeal or other modification of this Article
or any repeal or modification of the DGCL or any other applicable law shall not
limit any rights of indemnification then existing or arising out of events,
acts, omissions, or circumstances occurring or existing prior to such repeal
or modification, including, without limitation, the right to indemnification for
proceedings commenced after such repeal or modification to enforce this Article
with regard to acts, omissions, events or circumstances occurring or existing
prior to such repeal or modification.
Section 7. Severability. If this Article or any portion hereof shall be
invalidated on any ground by any court of competent
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jurisdiction, then the Corporation shall nevertheless indemnify each Director,
officer and employee of the Corporation as to costs, charges and expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
with respect to any proceeding, whether civil, criminal, administrative or
investigative, including an action by or in the right of the Corporation, to the
full extent permitted by any applicable portion of this Article that shall not
have been invalidated and to the full extent permitted by applicable law.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Fiscal Year. The fiscal year of the Corporation shall be the
calendar year.
Section 2. Corporate Seal. The corporate seal shall be in such form as
may be approved from time to time by the Board of Directors. The seal may be
used by causing it or a facsimile thereof to be impressed or affixed or in any
other manner reproduced.
Section 3. Waiver of Notice. Whenever any notice is required to be given
under law or the provisions of 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 to notice.
ARTICLE VIII
AMENDMENTS
Both the Board of Directors and the stockholders shall have the power to
alter, amend or repeal these By-laws. Any repeal or change of these By-laws by
the stockholders shall require the affirmative vote of the holders of not less
than 80% of the votes entitled to be cast on the matter.
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