Exhibit 3(b)
Restated November 12, 1997
BY-LAWS OF
HUMANA INC.
ARTICLE I
Meetings of Stockholders
Section 1.1 Annual Meetings. The annual meeting of the stockholders
for the election of directors and for the transaction of such other business as
properly may come before such meeting shall be held on such date, and at such
time and place within or without the State of Delaware as may be designated by
the Board of Directors.
Section 1.2 Special Meetings. Special meetings of the stockholders
for any purpose or purposes, unless otherwise prescribed by law, may be called
at any time by the Board of Directors, the Chairman of the Board, the Chief
Executive Officer, or the President, to be held on such date, and at such time
and place within or without the State of Delaware as the Board of Directors, the
Chairman of the Board, the Chief Executive Officer or the President, whichever
has called the meeting, shall direct. A special meeting of the stockholders
shall be called by the Chairman of the Board, the Chief Executive Officer, or
the President whenever stockholders owning one-fourth of the shares of the
Corporation then issued and outstanding and entitled to vote on matters to be
submitted to stockholders of the Corporation shall make application therefor in
writing. Any such written request shall state a proper purpose or purposes of
the meeting and shall be delivered to the Chairman of the Board, the Chief
Executive Officer or the President.
Section 1.3 Notice of Meeting. Written notice of every meeting of
the stockholders shall be given by, or at the direction of, the person
authorized to call the meeting, to each stockholder of record entitled to vote
at the meeting, at his address appearing on the books of the Corporation or
supplied by him to the Corporation for the purpose of notice. The notice of
every meeting of the stockholders shall specify the place, day and hour of the
meeting and, in the case of a special meeting, the matter or matters to be acted
upon at such meeting. Only the matter or matters specified in the notice of a
special meeting shall be acted upon thereat. All notices of meetings of the
stockholders shall be mailed at least ten days before the time of the meeting.
The notice of every meeting of the stockholders may be accompanied by
a form of proxy approved by the Board of Directors in favor of such person or
persons as the Board of Directors may select.
Section 1.4 Quorum. Except where otherwise provided by law or these
By-laws, the presence at any meeting, in person or by proxy, of the holders of
record of a majority of the shares then issued and outstanding and entitled to
vote shall be necessary and sufficient to constitute a quorum for the
transaction of business.
Section 1.5 Adjournments. In the absence of a quorum, a majority in
interest of the stockholders entitled to vote, present in person or by proxy,
or, if no stockholder entitled to vote is present in person or by proxy, any
officer entitled to preside or act as secretary of such meeting, may adjourn the
meeting from time to time until a quorum shall be present. At any such
adjourned meeting at which a quorum shall be present, any business may be
transacted which might have been transacted at the meeting as originally called.
Section 1.6 Voting. Directors shall be chosen by a plurality of the
votes cast at the election, and, except where otherwise provided by law, all
other questions shall be determined by a majority of the votes cast on such
question. All voting shall be on a non-cumulative basis.
Section 1.7 Proxies. Any stockholder entitled to vote may vote by
proxy, provided that the instrument authorizing such proxy to act shall have
been executed in writing (which shall include telegraphing or cabling) by the
stockholder or by his duly authorized attorney-in-fact and filed with the
Secretary of the Corporation.
Section 1.8 Judges of Election. The Board of Directors may appoint
judges of election to serve at any election of directors and at balloting on any
other matter that may properly come before a meeting of stockholders. If no
such appointment shall be made, or if any of the judges so appointed shall fail
to attend, or refuse to or be unable to serve, then such appointment may be made
by the presiding officer at the meeting.
Section 1.9 Stockholder Proposals. At an annual meeting of
stockholders only such business shall be conducted, and only such proposals
shall be acted upon, as shall have been properly brought before the annual
meeting of stockholders (a) by, or at the direction of, the Board of Directors
or (b) by a stockholder of the Corporation who complies with the procedures set
forth in this Section 1.9. For business or a proposal to be properly brought
before an annual meeting of stockholders by a stockholder, the stockholder must
have given timely notice thereof in writing to the Secretary of the Corporation.
To be timely, a stockholder's notice must be delivered to or mailed and received
at the principal executive offices of the Corporation not less than 60 days nor
more than 90 days prior to the scheduled date of the annual meeting, regardless
of any postponement, deferral or adjournment of that meeting to a later date;
provided, however, that if less than 70 days' notice or prior public disclosure
of the date of the annual meeting is given or made to stockholders, notice by
the stockholder to be timely must be so delivered or received not later than the
close of business on the 10th day following the earlier of (i) the day on which
such notice of the date of the meeting was mailed or (ii) the day on which such
public disclosure was made.
A stockholder's notice to the Secretary shall set forth as to each
matter the stockholder proposes to bring before an annual meeting of
stockholders (i) a description, in 500 words or less, 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 address, as they appear on the
Corporation's books, of the stockholders known by such stockholder to be
supporting such proposal, (iii) the class and number of shares of the
Corporation which are beneficially owned by such stockholder on the date of such
stockholder's notice and by any other stockholders known by such stockholder to
be supporting such proposal on the date of such stockholder's notice, (iv) a
description, in 500 words or less, of any interest of the stockholder in such
proposal, and (v) a representation that the stockholder is a holder of record of
stock of the Corporation and intends to appear in person or by proxy at the
meeting to present the proposal specified in the notice. Notwithstanding
anything in these By-Laws to the contrary, no business shall be conducted at a
meeting of stockholders except in accordance with the procedures set forth in
this Section 1.9.
The chairman of the meeting shall, if the facts warrant, determine and
declare to the meeting that the business was not properly brought before the
meeting in accordance with the procedures prescribed by this Section 1.9, and if
he should so determine, he shall so declare to the meeting and any such business
not properly brought before the meeting shall not be transacted. Notwithstanding
the foregoing, nothing in this Section 1.9 shall be interpreted or construed to
require the inclusion of information about any such proposal in any proxy
statement distributed by, at the direction of, or on behalf of, the Board of
Directors.
The provisions of this Section 1.9 shall be applicable to annual
meetings of stockholders after the 1993 annual meeting of stockholders.
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Section 1.10 Stockholder Nominations. Subject to the rights, if any,
of the holders of any series of Preferred Stock then outstanding, only persons
nominated in accordance with the procedures set forth in this Section 1.10 shall
be eligible for election as directors. Nominations of persons for election to
the Board may be made at an annual meeting of stockholders or special meeting of
stockholders called by the Board of Directors for the purpose of electing
directors (i) by or at the direction of the Board or (ii) by any stockholder of
the Corporation entitled to vote for the election of directors at such meeting
who complies with the notice procedures set forth in this Section 1.10. 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 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 60 days nor
more than 90 days prior to the scheduled date of the meeting, regardless of any
postponement, deferral or adjournment of that meeting to a later date; provided,
however, that if less than 70 days' notice or prior public disclosure of the
date of the meeting is given or made to stockholders, notice by the stockholder
to be timely must be so delivered or received not later than the close of
business on the 10th day following the earlier of (i) the day on which such
notice of the date of the meeting was mailed or (ii) the day on which such
public disclosure was made.
A stockholder's notice to the Secretary shall set forth (i) as to each
person whom the stockholder proposes to nominate for election or reelection as a
director (a) the name, age, business address and residence address of such
person, (b) the principal occupation or employment of such person, (c) the class
and number of shares of the Corporation which are beneficially owned by such
person on the date of such stockholder's notice and (d) any other information
relating to such person that is required to be disclosed in solicitations of
proxies for election of directors, or is otherwise required, in each case
pursuant to Regulation 14A under the Securities Exchange Act of 1934, as
amended, or any successor statute thereto (the "Exchange Act") (including
without limitation such person's written consent to being named in the proxy
statement as a nominee and to serving as a director if elected); (ii) as to the
stockholder giving the notice (a) the name and address, as they appear on the
Corporation's books, of such stockholder and any other stockholders known by
such stockholder to be supporting such nominee(s), (b) the class and number of
shares of the Corporation which are beneficially owned by such stockholder on
the date of such stockholder's notice and by any other stockholders known by
such stockholder to be supporting such nominee(s) on the date of such
stockholder's notice, (c) a representation that the stockholder is a holder of
record of stock of the Corporation entitled to vote at such meeting and intends
to appear in person or by proxy at the meeting to nominate the person or persons
specified in the notice; and (iii) a description of all arrangements or
understandings between the stockholder and each nominee and other person or
persons (naming such person or persons) pursuant to which the nomination or
nominations are to be made by the stockholder.
No person shall be eligible for election as a director of the
Corporation unless nominated in accordance with the procedures set forth in this
Section 1.10. The chairman of the meeting shall, if the facts warrant,
determine and declare to the meeting that a nomination was not made in
accordance with the procedures prescribed by this Section 1.10, and if he should
so determine, he shall so declare to the meeting and the defective nomination
shall be disregarded.
The provisions of this Section 1.10 shall be applicable to meetings of
stockholders after the 1993 annual meeting of stockholders.
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Section 1.11 Record Date for Written Consents. In order that the
Corporation may determine the stockholders entitled to consent to corporate
action in writing without a meeting, the Board of Directors may fix a record
date, which record date shall not precede the date upon which the resolution
fixing the record date is adopted by the Board of Directors, and which date
shall not be more than ten (10) days after the date upon which the resolution
fixing the record date is adopted by the Board of Directors. Any stockholder of
record seeking to have the stockholders authorize or take corporate action by
written consent shall, by written notice to the Secretary, request the Board of
Directors to fix a record date. The Board of Directors shall promptly, but in
all events within ten (10) days after the date on which such a request is
received, adopt a resolution fixing the record date. If no record date has been
fixed by the Board of Directors within ten (10) days of the date on which such a
request is received, the record date for determining stockholders entitled to
consent to corporate action in writing without a meeting, when no prior action
by the Board of Directors is required by applicable law, shall be the first date
on which a signed written consent setting forth the action taken or proposed to
be taken is delivered to the Corporation by delivery to its registered office in
the State of Delaware, its principal place of business, or any officer or agent
of the Corporation having custody of the book in which proceedings of
stockholders meetings are recorded, to the attention of the Secretary of the
Corporation. Delivery shall be by hand or by certified or registered mail,
return receipt requested. If no record date has been fixed by the Board of
Directors and prior action by the Board of Directors is required by applicable
law, the record date for determining stockholders entitled to consent to
corporate action in writing without a meeting shall be at the close of business
on the date on which the Board of Directors adopts the resolution taking such
prior action.
ARTICLE II
Board of Directors
Section 2.1 Number. The number of directors which shall constitute
the whole Board of Directors shall be fixed from time to time by resolution of
the Board of Directors or stockholders (any such resolution of either the Board
of Directors or stockholders being subject to any later resolution of either of
them) but in no event shall such number be less than three or more than fifteen.
Section 2.2 Election and Term of Office. Directors shall be elected
at the annual meeting of the stockholders. Each director (whether elected at an
annual meeting or to fill a vacancy or otherwise) shall continue in office until
his successor shall have been elected or until his earlier death, resignation or
removal in the manner hereinafter provided.
Section 2.3 The Chairman of the Board. The Chairman of the Board
shall be elected from among the members of the Board of Directors. If present,
he shall preside at all meetings of stockholders and the Board of Directors and
he shall see that all orders and resolutions of the Board of Directors are
carried into effect. He may sign, with any officer thereunto duly authorized,
certificates of stock of the Corporation the issuance of which shall have been
duly authorized (the signature to which may be a facsimile signature). He shall
also perform such other duties as are given to him by these By-laws or as from
time to time may be assigned to him by the Board of Directors.
Section 2.4 Vice Chairman of the Board. The Vice Chairman of the
Board shall, in the absence of the Chairman of the Board, preside at all
meetings of stockholders and the Board of Directors. He shall preform such
other duties as may be assigned to him by these By-laws, the Board of Directors
or the Chairman of the Board.
Section 2.5 Vacancies and Additional Directorships. If any vacancy
shall occur among the directors by reason of death, resignation, or removal, or
as the result of an increase in the number of directorships, the directors then
in office shall continue to act and may fill any such vacancy by a vote of the
directors then in office, though less than a quorum. If the whole board shall
resign, said
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board, prior to their resignations, may elect their successors who
will take office upon such resignations.
Section 2.6 Meetings. A meeting of the Board of Directors shall be
held for organization, for the election of officers and for the transaction of
such other business as may properly come before the meeting, within thirty days
after each annual election of directors. The Board of Directors by resolution
may provide for the holding of regular meetings and may fix the time and places
at which such meetings shall be held. Notice of regular meetings shall not be
required to be given, provided that whenever the time or place of regular
meetings shall be fixed or changed, notice of such action shall be mailed
promptly to each director who shall not have been present at the meeting at
which such action was taken, addressed to him at his residence or usual place of
business. Special meetings of the Board of Directors may be called by the
Chairman of the Board, the Chief Executive Officer, the President, or any three
directors. Except as otherwise required by statute, notice of each special
meeting shall be mailed to each director addressed to him at his residence or
usual place of business, or shall be sent to him at such place by telegram,
radio or cable, or telephoned or delivered to him personally, not later than two
days before the day on which the meeting is to be held. Such notice shall state
the time and place of such meeting but, unless otherwise required by statute,
the Certificate of Incorporation of the Corporation or these By-laws, need not
state the purposes thereof. Notice of any meeting need not be given to any
director who shall attend such meeting in person or who shall waive notice
thereof, before or after such meeting in writing or by telegram, radio or cable.
Meetings of the directors may be held by the directors participating in the same
by means of a conference telephone or similar communications equipment by means
of which all persons participating in the meeting can hear each other, and
participation in a meeting in such manner shall constitute presence in person by
all persons so participating. Meetings may also be held in such other manner
authorized or permitted by Delaware law. Whenever the laws of the State of
Delaware authorize or permit directors to act other than at a meeting,
including, but not limited to, acting through unanimous or other written
consents, then such actions shall be as effective as if taken by the directors
at a meeting.
Section 2.7 Quorum. A majority of the total number of members
of the Board of Directors as constituted from time to time shall be necessary
and sufficient to constitute a quorum for the transaction of business. In the
absence of a quorum, a majority of those present at the time and place of any
meeting may adjourn the meeting from time to time until a quorum shall be
present and the meeting may be held as adjourned without further notice. Except
as otherwise provided by law, the Certificate of Incorporation or by these By-
Laws, a majority of the Directors present at any meeting at which a quorum is
present may decide any question properly brought before such meeting.
Section 2.8 Resignation of Directors. Any director may resign
at any time by giving written notice of such resignation to the Board of
Directors, the Chairman of the Board or the Chief Executive Officer or the
President. Any such resignation shall take effect at the time specified therein
or, if no time is specified, upon receipt thereof by the Board of Directors or
one of the above named officers; and, unless specified therein, the acceptance
of such resignation shall not be necessary to make it effective.
Section 2.9 Removal of Directors. At any special meeting of the
stockholders, duly called as provided in these By-laws, any director or
directors may, by the affirmative vote of the holders of a majority of all the
shares of stock outstanding and entitled to vote for the election of directors,
be removed from office, either with or without cause. At such meeting a
successor or successors may be elected by a plurality of the votes cast, or if
any such vacancy is not so filled, it may be filled by the directors as provided
in Section 2.5.
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Section 2.10 Compensation of Directors. Directors shall receive
such reasonable compensation for their services as such, whether in the form of
salary of a fixed fee for attendance at meetings, with expenses, if any, as the
Board of Directors may from time to time determine. Nothing herein contained
shall be construed to preclude any director from serving the Corporation in any
other capacity and receiving compensation therefor.
ARTICLE III
Committees of the Board
Section 3.1 Executive Committee. There shall be an Executive
Committee of the Corporation, consisting of not less than three nor more than
seven members of the Board of Directors, including the Chairman of the Board, as
may be determined from time to time by the Board of Directors. The Board of
Directors, by resolution adopted by a majority of the whole Board, shall elect
the members of the Executive Committee and shall fill any vacancy in the
Executive Committee. The members of the executive Committee shall hold office
until the first meeting of the Board of Directors after the next succeeding
annual meeting of the stockholders and until their successors are elected.
All action of the Executive Committee shall be reported to the Board
of Directors, and, when the Board of Directors of the Corporation is not in
session, the Executive Committee shall have and exercise the authority of the
Board of Directors in the management of the business, affairs and property of
the Corporation.
Section 3.2 Other Committees. The Board of Directors may from time
to time appoint such further standing or special committees as it may deem for
the best interest of the Corporation, but no such committee shall have any
powers, except such as are expressly conferred upon it by the Board of
Directors. Each committee referred to in this Article III shall act only as a
committee and the individual members shall have no power as such.
Section 3.3 Meetings, Notices and Records. Each committee may
provide for the holding of regular meetings, with or without notice, and may fix
the time and place at which such meetings shall be held. Special meetings of
each committee shall be held upon call by or at the direction of its chairman
or, if there be no chairman, by or at the direction of any two of its members,
at the time and place specified in the respective notices or waivers of notice
thereof. Notice of each special meeting of a committee shall be mailed to each
member of such committee, addressed to him at his residence or usual place of
business, at least two days before the day on which the meeting is to be held,
or shall be sent by telegram, radio or cable, addressed to him at such place, or
telephoned or delivered to him personally, not later than the day before the day
on which the meeting is to be held. Notice of any meeting of a committee need
not be given to any member thereof who shall attend the meeting or who shall
waive notice thereof by telegram, radio, cable or other writing. Notice of any
adjourned meeting need not be given. Each committee shall keep a record of its
proceedings, and report the same to the Board of Directors when required.
Meetings of the committees may be held by the members of the committees
participating in the same by means of a conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting in such manner shall
constitute presence in person by all persons so participating. Meetings may
also be held in such other manner authorized or permitted by Delaware law.
Whenever the laws of the State of Delaware authorize or permit members of the
committees to act other than at a meeting, including but not limited to acting
through unanimous or other written consents, then such actions shall be as
effective as if taken by the committee at a meeting.
Section 3.4 Quorum and Manner of Acting. At each meeting of any
committee the presence of a majority but not less than two of its members then
in office shall be necessary and sufficient to constitute a quorum for the
transaction of business, and the act of a majority of the
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members present at any meeting at which a quorum is not present at the time and
place of any meeting may adjourn the meeting from time to time and until a
quorum shall be present. Subject to the foregoing and other provisions of these
By-laws and except as otherwise determined by the Board of Directors, each
committee may make rules for the conduct of its business. Any determination made
in writing and signed by all the members of such committee shall be as effective
as if made by such committee at a meeting.
Section 3.5 Resignations. Any member of a committee may resign at
any time by giving written notice of such resignation to the Board of Directors,
the Chairman of the Board, the Chief Executive Officer, or the President.
Unless otherwise specified in such notice, such resignation shall take effect
upon receipt thereof by the Board or any such officer.
Section 3.6 Removal. Any member of any committee may be removed at
any time by the Board of Directors with or without cause.
Section 3.7 Vacancies. If any vacancy shall occur in any committee
by reason of death, resignation, disqualification, removal or otherwise, the
remaining members of such committee, though less than a quorum, shall continue
to act until such vacancy is filled by the Board of Directors.
Section 3.8 Compensation. Committee members shall receive such
reasonable compensation for their services as such, whether in the form of
salary or a fixed fee for attendance at meetings, with expenses, if any, as the
Board of Directors may from time to time determine. Nothing herein contained
shall be construed to preclude any committee member from serving the Corporation
in any other capacity and receiving compensation therefor.
ARTICLE IV
Officers
Section 4.1 Number. The officers of the Corporation shall be a Chief
Executive Officer, a President, such Vice-Presidents (including Executive Vice-
Presidents or Senior Vice-Presidents) as may from time to time be necessary or
desirable, a Secretary, who may have one or more assistant secretaries, a
Treasurer, who may have one or more assistant treasurers, and such other
officers as the Board of Directors may from time to time determine. Any two or
more offices may be held by the same person.
Section 4.2 Election, Term of Office and Qualifications. Each
officer (except such officers as may be appointed in accordance with the
provisions of Section 4.3) shall be elected by the Board of Directors. Each
such officer (whether elected at the first meeting of the Board of Directors
after the annual meeting of stockholders or to fill a vacancy or otherwise)
shall hold his office until the first meeting of the Board of Directors after
the next annual meeting of stockholders and until his successor shall have been
elected, or until his death, or until he shall have resigned in the manner
provided in Section 4.4 or shall have been removed in the manner provided in
Section 4.5.
Section 4.3 Subordinate Officers and Agents. The Board of Directors
from time to time may appoint other officers or agents to hold office for such
period, have such authority and perform such duties as are provided in these By-
laws or as may be provided in the resolutions appointing them. The Board of
Directors may delegate to any officer or agent the power to appoint any such
subordinate officers or agents and to prescribe their respective terms of
office, authorities and duties, and unless such power is removed by the Board,
the Chairman of the Board, the Chief Executive Officer and the President shall
have the power to appoint and remove Assistant Secretaries and Assistant
Treasurers.
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Section 4.4 Resignations. Any officer may resign at any time by
giving written notice of such resignation to the Board of Directors, the
Chairman of the Board, the Chief Executive Officer or the President. Unless
otherwise specified in such written notice, such resignation shall take effect
upon receipt thereof by the Board of Directors or any such officer.
Section 4.5 Removal. Any officer may be removed at any time, with or
without cause, at any meeting of the Board of Directors by the vote of a
majority of all the directors then in office. Any officer or agent appointed in
accordance with the provisions of Section 4.3 may be removed, with or without
cause, by the Board of Directors at any meeting, by the vote of a majority of
the directors present at such meeting, or by any officer or agent upon whom such
power of removal shall have been conferred by the Board of Directors.
Section 4.6 Vacancies. A vacancy in any office by reason of death,
resignation, removal, disqualification or any other cause shall be filled for
the unexpired portion of the term in the manner prescribed by these By-laws for
regular election or appointment to such office.
Section 4.7 The Chief Executive Officer. The Chief Executive Officer
shall be the principal executive officer of the Corporation and may be elected
from among the members of the Board of Directors. The Chairman of the Board or
President may be the Chief Executive Officer of the Corporation. Subject to the
direction of the Board of Directors, he shall have general charge of the
business, affairs and property of the Corporation and general supervision over
its officers and agents. In the absense of the Chairman of the Board and the
Vice Chairman of the Board, he shall preside at all meetings of stockholders and
he shall see that all orders and resolutions of the Board of Directors are
carried into effect. He may sign, with any other officer thereunto duly
authorized, certificates of stock of the Corporation the issuance of which shall
have been duly authorized (the signature to which may be a facsimile signature),
He may sign and execute in the name of the Corporation deeds, mortgages, bonds,
contracts, agreements or other instruments duly authorized by the Board of
Directors except in cases where the signing and execution thereof shall be
expressly delegated by the Board of Directors to some other officer or agent.
From time to time, he shall report to the Board of Directors all matters within
his knowledge which the interests of the Corporation may require to be brought
to its attention. He shall also perform such other duties as are given to him by
these By-laws or as from time to time may be assigned to him by the Board of
Directors.
Section 4.8 The President. The President shall be an executive officer
of the Corporation and may also be the Chief Executive Officer, as determined by
the Board of Directors. Subject to the direction of the Board of Directors and
the Chief Executive Officer, the President shall have supervision of the
business of the Corporation and its other officers and agents. He may sign, with
any other officer thereunto duly authorized, certificates of stock of the
Corporation the issuance of which shall have been duly authorized (the signature
to which may be a facsimile signature), and may sign and execute in the name of
the Corporation, deeds, mortgages, bonds, contracts, agreements or other
instruments duly authorized by the Board of Directors except in cases where the
signing and execution thereof shall be expressly delegated by the Board of
Directors to some other officer or agent. From time to time, he shall report to
the Board of Directors all matters within his knowledge which the interests of
the Corporation may require to be brought to its attention. He shall also
perform such other duties as are given to him by these By-laws, or from time to
time may be assigned to him by the Chief Executive Officer or the Board of
Directors.
Section 4.9 The Vice Presidents. The Vice Presidents shall perform
such duties and exercise such authority as shall from time to time may be
assigned to them by the Board of Directors, the Chairman of the Board, the Chief
Executive Officer or the President, and, in the order of their seniority, or in
any other order as the Board of Directors may from time to time determine,
shall, in the absence of the President, have all the powers of and be subject to
all restrictions upon the President.
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Section 4.10 The Secretary. The Secretary shall
(a) Record all the proceedings of the meetings of the stockholders,
the Board of Directors, and any committees in a book or books to be kept for
that purpose;
(b) Cause all notices to be duly given in accordance with the
provisions of these By-laws and as required by statute;
(c) Whenever any committee shall be appointed in pursuance of a
resolution of the Board of Directors, furnish the chairman of such committee
with a copy of such resolution;
(d) Be custodian of the records and of the seal of the Corporation,
and cause such seal to be affixed to all certificates representing stock of the
Corporation prior to the issuance thereof and to all instruments the execution
of which on behalf of the Corporation under its seal shall have been duly
authorized;
(e) See that the lists, books, reports, statements, certificates and
other documents and records required by statute are properly kept and filed;
(f) Have charge of the stock and transfer books of the Corporation,
and exhibit such stock book at all reasonable times to such persons as are
entitled by statute to have access thereto;
(g) Sign (unless the Treasurer or an Assistant Secretary or an
Assistant Treasurer shall sign) certificates representing stock of the
Corporation the issuance of which shall have been duly authorized (the signature
to which may be a facsimile signature); and
(h) In general, perform all duties incident to the office of the
Secretary and such other duties as are given to him by these By-laws or as from
time to time may be assigned to him by the Board of Directors, the Chairman of
the Board, the Chief Executive Officer or the President.
Section 4.11 Assistant Secretaries. At the request of the Secretary or
in his absence or disability, the Assistant Secretary designated by him (or in
the absence of such designation, the Assistant Secretary designated by the Board
of Directors or the Chairman of the Board, the Chief Executive Officer or the
President) shall perform all duties of the Secretary, and, when so acting, shall
have all the powers of and be subject to all restrictions upon the Secretary.
The Assistant Secretaries shall perform such other duties as from time to time
may be assigned to them respectively by the Board of Directors, the Chairman of
the Board, the Chief Executive Officer, the President or the Secretary.
Section 4.12 The Treasurer. The Treasurer shall
(a) Have charge of and supervision over and be responsible for the
funds, securities, receipts and disbursements of the Corporation;
(b) Cause the moneys and other valuable effects of the Corporation to
be deposited in the name and to the credit of the Corporation in such banks or
trust companies or with such bankers or other depositaries as shall be selected
in accordance with Section 5.3 of these By-laws or to be otherwise dealt with in
such manner as the Board of Directors may direct;
(c) Cause the funds of the Corporation to be disbursed by checks or
drafts upon the authorized depositaries of the Corporation, and cause to be
taken and preserved proper vouchers for all moneys disbursed;
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(d) Render to the Board of Directors or the Chairman of the Board, the
Chief Executive Officer or the President, whenever requested, a statement of the
financial condition of the Corporation and of all his transactions as Treasurer;
(e) Cause to be kept at the Corporation's principal office correct
books of account of all its business and transactions and such duplicate books
of account as he shall determine and upon application cause such books or
duplicates thereof to be exhibited to any director;
(f) Be empowered, from time to time, to require from the officers or
agents of the Corporation, reports or statements giving such information as he
may desire with respect to any and all financial transactions of the
Corporation;
(g) Sign (unless the Secretary or an Assistant Secretary or an
Assistant Treasurer shall sign) certificates representing stock of the
Corporation, the issuance of which shall have been duly authorized (the
signature to which may be a facsimile signature); and
(h) In general, perform all duties incident to the office of Treasurer
and such other duties as are given to him by these By-laws or as from time to
time may be assigned to him by the Board of Directors, the Chairman of the
Board, the Chief Executive Officer or the President.
Section 4.13 Assistant Treasurers. At the request of the Treasurer or
in his absence or disability, the Assistant Treasurer designated by him (or in
the absence of such designation, the Assistant Treasurer designated by the Board
of Directors, the Chairman of the Board, the Chief Executive Officer or the
President) shall perform all the duties of the Treasurer, and, when so acting,
shall have all the powers of and be subject to all restrictions upon the
Treasurer. The Assistant Treasurers shall perform such other duties as from time
to time may be assigned to them respectively by the Board of Directors, the
Chairman of the Board, the Chief Executive Officer, the President or the
Treasurer.
Section 4.14 Surety Bonds. If the Board of Directors shall so require,
any officer or agent of the Corporation shall execute to the Corporation a bond
in such sum and with such surety or sureties as the Board of Directors may
direct, conditioned upon the faithful discharge of his duties, including
responsibility for negligence and for the accounting for all property, funds or
securities of the Corporation which may come into his hands.
ARTICLE V
Execution of Instruments and Deposit
of Corporate Funds
Section 5.1 Execution of Instruments Generally. The Chairman of the
Board, the Chief Executive Officer, the President, any Vice President, the
Secretary or the Treasurer, subject to the approval of the Board of Directors,
may enter into any contract or execute and deliver any instrument in the name
and on behalf of the Corporation. The Board of Directors may authorize any
officer or officers, or agents or agent, to enter into any contract or execute
and deliver any instrument in the name and on behalf of the Corporation, and
such authorization may be general or confined to specific instances. Such
authorization may include, but shall not be limited to, the power to fix the
price at which any shares, debentures or other securities are to be sold by the
Corporation.
Section 5.2 Borrowing. No loans or advances shall be obtained by or
contracted for, by or on behalf of the Corporation and no negotiable paper shall
be issued in its name, unless and except as authorized by the Board of
Directors. Such authorization may be general or confined to specific instances.
Any officer or agent of the Corporation thereunto so authorized may obtain loans
and advances, may make, execute and deliver promissory notes, bonds or other
evidences of indebtedness
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of the Corporation and, in connection therewith, may fix the interest rate
payable by the Corporation thereunder. Any officer or agent of the Corporation
thereunto so authorized may pledge, hypothecate or transfer as security for the
payment of any and all loans, advances, indebtedness and liabilities of the
Corporation, and any and all stocks, bonds, other securities and other personal
property at any time held by the Corporation, and to that end may endorse,
assign and deliver the same and do every act and thing necessary or proper in
connection therewith.
Section 5.3 Deposits. All funds of the Corporation not otherwise
employed shall be deposited from time to time its credit in such banks or trust
companies or with such bankers or other depositaries as the Board of Directors
may select, or as may be selected by any officer or officers or agent or agents
authorized so to do by the Board of Directors. Endorsements for deposit to the
credit of the Corporation in any of its duly authorized depositaries shall be
made in such manner as the Board of Directors from time to time may determine.
Section 5.4 Checks, Drafts, and Orders. All checks, drafts, or other
orders for the payment of money, and all notes or other evidences of
indebtedness issued in the name of the Corporation, shall be signed by such
officer or officers or agent or agents of the Corporation, and in such manner,
as from time to time shall be determined by the Board of Directors.
Section 5.5 Proxies. Proxies to vote with respect to shares of stock
of other corporations owned by or standing in the name of the Corporation may be
executed and delivered from time to time on behalf of the Corporation by the
Chairman of the Board, the Chief Executive Officer, the President or by any
other person or persons thereunto authorized by the Board of Directors.
ARTICLE VI
Record Dates
Section 6.1 In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment or any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board of Directors may fix, in advance, a record date,
which shall be not more than sixty nor less than ten days before the date of
such meeting, nor more than sixty days prior to any other action. Only those
stockholders of record on the date so fixed shall be entitled to any of the
foregoing rights, notwithstanding the transfer of any such stock on the books of
the Corporation after any such record date fixed by the Board of Directors.
ARTICLE VII
Corporate Seal
Section 7.1 The Corporate seal shall be circular in form and shall
bear the name of the Corporation and words and figures denoting its organization
under the laws of the State of Delaware and the year thereof and otherwise shall
be in such form as shall be approved from time to time by the Board of
Directors.
ARTICLE VIII
Fiscal Year
Section 8.1 The fiscal year of the Corporation shall begin on the 1st
day of January in each year and end on the 31st day of December in each year.
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ARTICLE IX
Amendments
Section 9.1 These By-laws may be amended, altered or repealed, and new
By-laws may be made by the affirmative vote of the holders of record of a
majority of the outstanding shares of stock of the Corporation entitled to vote
cast at any annual or special meeting, or by the affirmative vote of a majority
of the directors cast at any regular or special meeting at which a quorum is
present.
ARTICLE X
Indemnification
Section 10.1 Right to Indemnification. Each person who was or is made
a party or is threatened to be made a party to or is involved in any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative ("Proceeding"), by reason of the fact that he,
or a person of whom he is the legal representative, is or was a director,
officer, employee or agent of the Corporation or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation or of a partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans, whether the basis of
such Proceeding is alleged action in an official capacity as a director,
officer, employee or agent or in any other capacity while serving as a director,
officer, employee or agent, shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by the Delaware General Corporation
Law, as the same 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 said Law permitted the
Corporation to provide prior to such amendment) against all expenses, liability
and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or
penalties and amounts paid or to be paid in settlement) reasonably incurred or
suffered by such person in connection therewith; provided, however, that the
Corporation shall indemnify any such person seeking indemnity in connection with
a Proceeding (or part thereof) initiated by such person only if the Proceeding
(or part thereof) was authorized by the Board of Directors of the Corporation.
The right to indemnification conferred in this Section 10.1 shall be a contract
right and shall include the right to be paid by the Corporation expenses
incurred in defending any such Proceeding in advance of its final disposition;
provided, however, that if the Delaware General Corporation Law requires, the
payment of such expenses incurred by a director or officer in his capacity as a
director or officer (and not in any other capacity in which service was or is
rendered by such person while a director or officer, including, without
limitation, service to an employee benefit plan) in advance of the final
disposition of such Proceeding, shall be made only upon delivery to the
Corporation of an undertaking, by or on behalf of such director or officer, to
repay all amounts so advanced if it should be determined ultimately that such
director or officer is not entitled to be indemnified under this Section or
otherwise.
Section 10.2 Non-Exclusivity of Rights. The rights conferred on any
person by Section 10.1 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.
Section 10.3 Insurance. The Corporation may maintain insurance, at its
expense, to protect itself and any such director, officer, employee or agent of
the Corporation or another corporation, partnership, joint venture, trust or
other enterprise against any such expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
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Section 10.4 Gender and Number References. In this document the
singular means the plural and the plural the singular, as appropriate, and the
proper gender- male, female, or neuter- shall be deemed substituted as
appropriate.
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