1
EXHIBIT 3.5
AMENDED AND RESTATED BYLAWS
OF
TEXAS CAPITAL BANCSHARES, INC.
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the corporation
shall be in the City of Wilmington, County of New Castle, State of Delaware.
Section 2. Other Offices. The corporation may also have offices at such
other places, both within and without the State of Delaware, as the Board of
Directors may from time to time determine or as the business of the corporation
may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of stockholders may be held at such
time and place, within or without the State of Delaware, as shall be stated in
the notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual Meetings. An annual meeting of stockholders shall be held
on such day in each fiscal year of the corporation and at such time and place as
may be fixed by the Board of Directors, at which meeting the stockholders shall
elect a Board of Directors and transact such other business as may properly be
brought before the meeting.
Section 3. Notice of Annual Meeting. Written or printed notice of the
annual meeting, stating the place, day and hour thereof, shall be given to each
stockholder entitled to vote thereat at such address as appears on the books of
the corporation, not less than ten days nor more than sixty days before the date
of the meeting.
Section 4. Special Meetings. Special meetings of the stockholders, for any
purpose or purposes, unless otherwise prescribed by statute or the certificate
of incorporation, may be called by the President, and shall be called by the
President or the Secretary at the request in writing of a majority of the Board
of Directors, or at the request in writing of stockholders of record owning at
least one-tenth (1/10) of all shares issued and outstanding and entitled to vote
at such meeting. Such request shall state the purpose or purposes of the
proposed meeting.
Section 5. Notice of Special Meetings. Written or printed notice of a
special meeting of stockholders, stating the place, day and hour and purpose or
purposes thereof, shall be given to each stockholder entitled to vote thereat at
such address as appears on the books of the corporation, not less than ten days
nor more than sixty days before the date of the meeting.
Section 6. Business at Special Meetings. Business transacted at all special
meetings of stockholders shall be confined to the purpose or purposes stated in
the notice thereof.
Section 7. Adjournments. Any meeting of stockholders, annual or special,
may adjourn from time to time to reconvene at the same or some other place, and
notice need not be given of any such adjournment meeting if the time and place
thereof are announced at the meeting at which the adjournment is taken. 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 30
days, or if after the adjournment
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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 8. Stockholder List. At least ten days before each meeting of
stockholders, a complete list of the stockholders entitled to vote at such
meeting or any adjournment thereof, arranged in alphabetical order, with the
address of and the number of voting shares held by each, shall be prepared by
the Secretary. Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, during ordinary business hours, for such
ten day period, 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. Such list shall also be
produced and kept open at the time and place of the meeting and shall be subject
to the inspection of any stockholder during the meeting.
Section 9. Notice of Shareholder Nominees. Only persons who are nominated
in accordance with the procedures set forth in this paragraph shall be eligible
for election as directors of the Corporation. Nominations of persons for
election to the board of directors of the Corporation may be made at a meeting
of stockholders (a) by or at the direction of the board of directors or (b) by
any stockholder of the Corporation entitled to vote for the election of
directors at such meeting who complies with the procedures set forth in this
paragraph. All nominations by stockholders shall be made pursuant to timely
notice in proper written form to the 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 180 days nor more
than 270 days prior to the meeting; provided, however, that in the event less
than 30 days' notice or prior 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 day following the day on which
such notice of the date of the meeting was mailed or such public disclosure was
made. To be in proper written form, such stockholder's notice to the Secretary
shall set forth in writing (a) as to each person whom such stockholder proposes
to nominate for election or re-election as a director, all information relating
to such person that is required to be disclosed in solicitations of proxies for
election of directors, or is otherwise required, in each case pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended, including,
without limitation, such person's written consent to being named in the proxy
statement as a nominee and to serving as a director if elected; and (b) as to
such stockholder (i) his or her name and address, as they appear on the
Corporation's books, and (ii) the class and number of shares of stock of the
Corporation which are beneficially owned by such stockholder. At the request of
the board of directors, any person nominated by the board of directors for
election as a director shall furnish to the Secretary of the Corporation that
information required to be set forth in a stockholder's notice of nomination
which pertains to the nominee. No person shall be eligible for election as a
director unless nominated in accordance with the procedures set forth in the
bylaws of the Corporation. The chairman of the meeting shall, if the facts
warrant, determine and declare to the meeting that a nomination was not made in
accordance with the procedures prescribed by the bylaws of the Corporation, and
if he shall so determine, he shall so declare to the meeting and the defective
nomination shall be disregarded.
Section 10. Stockholder Proposals. At any special meeting of the
stockholders, only such business shall be conducted as shall have been brought
before the meeting by or at the direction of the board of directors. At any
annual meeting of the stockholders, only such business shall be conducted as
shall have been brought before the meeting (a) by or at the direction of the
board of directors or (b) by any stockholder who complies with the procedures
set forth in this paragraph. For business properly to be brought before an
annual meeting by a stockholder, the stockholder must have given timely notice
thereof in proper written form to the Secretary of the Corporation. To be
timely, a stockholder's notice must be delivered to, or mailed and received at,
the principal executive offices of the Corporation not less than 180 days nor
more than 270 days prior to the meeting; provided, however, that in the event
that less than 30 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 received not later than the close of business on the 10th day following
the day on which such notice of the date of the annual meeting was mailed or
such public disclosure was made. To be in proper written form, such
stockholder's notice to the Secretary shall set forth in writing as to each
matter such stockholder proposes to bring before the annual meeting (a) a brief
description of the business desired to be brought before the annual meeting and
the reasons for conducting such business at
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the annual meeting, (b) his or her name and address, as they appear on the
Corporation's books, (c) the class and number of shares of stock of the
Corporation which are beneficially owned by such stockholder and (d) any
material interest of such stockholder in such business. Notwithstanding anything
in these bylaws to the contrary, no business shall be conducted at an annual
meeting except in accordance with the procedures set forth in this paragraph.
The chairman of an annual meeting shall, if the facts warrant, determine and
declare to the meeting that business was not properly brought before the meeting
in accordance with the provisions of this paragraph, 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.
Section 11. Quorum. The holders of a majority of the votes attributed to
the shares of capital stock issued and outstanding and entitled to vote thereat,
represented in person or by proxy, shall constitute a quorum at all meetings of
the stockholders for the transaction of business except as otherwise provided by
statute, the certificate of incorporation or these bylaws. The stockholders
present may adjourn the meeting despite the absence of a quorum. When a meeting
is adjourned for less than thirty days in any one adjournment and a new record
date is not fixed for the adjourned meeting, it shall not be necessary to give
any notice of the adjourned meeting if the time and place to which the meeting
is adjourned are announced at the meeting at which the adjournment is taken, and
at the adjourned meeting any business may be transacted that might have been
transacted on the original date of the meeting. When a meeting is adjourned for
thirty days or more, or when after the adjournment a new record date is fixed
for the adjourned meeting, notice of the adjourned meeting shall be given as in
the case of an original meeting.
Section 12. Majority Vote. When a quorum is present at any meeting, the
vote of the holders of a majority of the shares having voting power represented
in person or by proxy shall decide any question brought before such meeting,
unless the question is one upon which, by express provision of statute, the
certificate of incorporation or these bylaws, a different vote is required, in
which case such express provision shall govern and control the decision of such
question.
Section 13. Proxies. (a) Each stockholder entitled to vote at a meeting of
stockholders or to express consent or dissent to corporate action in writing
without a meeting may authorize another person or persons to act for him by
proxy, but no such proxy shall be voted or acted upon after three years from its
date, unless the proxy provides for a longer period.
(b) Without limiting the manner in which a stockholder may authorize
another person or persons to act for him as proxy pursuant to subsection (a) of
this Section, the following shall constitute a valid means by which a
stockholder may grant such authority:
(i) A stockholder may execute a writing authorizing another person
or persons to act for him as proxy. Execution may be accomplished by the
stockholder or his authorized officer, director, employee or agent signing such
writing or causing his or her signature to be affixed to such writing by any
reasonable means including, but not limited to, by facsimile signature.
(ii) A stockholder may authorize another person or persons to act
for him as proxy by transmitting or authorizing the transmission of a telegram,
cablegram, or other means of electronic transmission to the person who will be
the holder of the proxy or to a proxy solicitation firm, proxy support service
organization or like agent duly authorized by the person who will be the holder
of the proxy to receive such transmission, provided that any such telegram,
cablegram or other means of electronic transmission must either set forth or be
submitted with information from which it can be determined that the telegram,
cablegram or other electronic transmission was authorized by the stockholder. If
it is determined that such telegrams, cablegrams or other electronic
transmissions are valid, the inspectors or, if there are no inspectors, such
other persons making that determination shall specify the information upon which
they relied.
(c) Any copy, facsimile telecommunication or other reliable
reproduction of the writing or transmission created pursuant to subsection (b)
of this Section may be substituted or used in lieu of the original writing or
transmission for any and all purposes for which the original writing or
transmission could
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be used, provided that such copy, facsimile telecommunication or other
reproduction shall be a complete reproduction of the entire original writing or
transmission.
(d) Any copy, facsimile telecommunication or other reliable
reproduction of the writing or transmission created pursuant to subsection (b)
of this Section may be substituted or used in lieu of the original writing or
transmission for any and all purposes for which the original writing or
transmission could be used, provided that such copy, facsimile telecommunication
or other reproduction shall be a complete reproduction of the entire original
writing or transmission.
Section 14. Voting. Unless otherwise provided by statute or the certificate
of incorporation, each stockholder shall have one vote for each share of stock
having voting power, registered in his name on the books of the corporation.
Section 15. Consent of Stockholders in Lieu of Meeting. Any action required
to be taken at any annual or special meeting of stockholders, or any action
which may be taken at any annual or special meeting of stockholders, may be
taken without a meeting, without prior notice and without a vote, if a consent
or consents in writing, setting forth the action so taken, shall be signed by
the holders of outstanding stock having not less than the minimum number of
votes that would be necessary to authorize or take such action at a meeting at
which all shares entitled to vote thereon were present and voted and such
consent or consents are delivered to the corporation. Every written consent
shall bear the date of signatures of each stockholder and no written consent
shall be effective to take the corporate action referred to therein unless,
within sixty days of the earliest dated consent, written consents signed by a
sufficient number of holders to take action are delivered to the corporation.
Prompt notice of the taking of the corporate action without a meeting by less
than unanimous written consent shall be given to those stockholders who have not
consented in writing.
Section 16. Inspectors. (a) The corporation may, in advance of any meeting
of stockholders, appoint one or more inspectors to act at the meeting and make a
written report thereof. The corporation may designate one or more persons as
alternate inspectors to replace any inspector who fails to act. If no inspector
or alternate is able to act at a meeting of stockholders, the chairman of the
meeting shall appoint one or more inspectors to act at the meeting. Each
inspector, before entering upon the discharge of his duties, shall take and sign
an oath faithfully to execute the duties of inspector with strict impartiality
and according to the best of his ability.
(b) The inspectors shall (i) ascertain the number of shares outstanding
and the voting power of each, (ii) determine the shares represented at a meeting
and the validity of proxies and ballots, (iii) count all votes and ballots, (iv)
determine and retain for a reasonable period a record of the disposition of any
challenges made to any determination by the inspectors, and (v) certify their
determination of the number of shares represented at the meeting, and their
count of all votes and ballots. The inspectors may appoint or retain other
persons or entities to assist the inspectors in the performance of the duties of
the inspectors.
(c) The date and time of the opening and the closing of the polls for
each matter upon which the stockholders will vote at a meeting shall be
announced at the meeting. No ballot, proxies or votes, nor any revocations
thereof or changes thereto, shall be accepted by the inspectors after the
closing of the polls unless the Delaware Court of Chancery, upon application by
a stockholder, shall determine otherwise.
(d) In determining the validity and counting of proxies and ballots,
the inspectors shall be limited to an examination of the proxies, any envelopes
submitted with those proxies, any information provided in accordance with
Article II, Section 10(b)(ii), ballots and the regular books and records of the
corporation, except that the inspectors may consider other reliable information
for the limited purpose of reconciling proxies and ballots submitted by or on
behalf of banks, brokers, their nominees or similar persons that represent more
votes than the holder of a proxy is authorized by the record owner to cast, or
more votes than the stockholder holds of record. If the inspectors consider
other reliable information for the limited purpose permitted herein, the
inspectors at the time they make their certification pursuant to
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subsection (b)(v) of this Section shall specify the precise information
considered by them including the person or persons from whom they obtained the
information, when the information was obtained, the means by which the
information was obtained and the basis for the inspector's belief that such
information is accurate and reliable.
ARTICLE III
BOARD OF DIRECTORS
Section 1. Powers. The business and affairs of the corporation shall be
managed by a Board of Directors. The Board may exercise all such powers of the
corporation and do all such lawful acts and things as are not by statute, by the
certificate of incorporation or these bylaws directed or required to be
exercised or done by the stockholders.
Section 2. Number of Directors. The number of directors which shall
constitute the whole Board shall be fixed from time to time by resolution of the
Board of Directors, provided that such number shall not be less than one (1) nor
more than fifteen (15).
Section 3. Election and Term. Except as provided in Section 4 of this
Article III, directors shall be elected at the annual meeting of the
stockholders, and each director shall be elected to serve until the next annual
meeting and until his successor shall have been elected and shall qualify, or
until his death, resignation or removal from office. Directors need not be
stockholders of the corporation.
Section 4. Vacancies and Newly Created Directorships. If the office of any
director or directors becomes vacant by reason of death, resignation,
retirement, disqualification, removal from office, or otherwise, or the number
of directors constituting the whole Board shall be increased, a majority of the
remaining or existing directors, though less than a quorum, may choose a
successor or successors, or the director or directors to fill the new
directorship or directorships, who shall hold office for the unexpired term in
respect to which such vacancy occurred or, in the case of a new directorship or
directorships, until the next annual meeting of the stockholders.
Section 5. Removal. The stockholders may remove a director either for or
without cause at any meeting of stockholders, provided notice of the intention
to act upon such matter shall have been given in the notice calling such
meeting.
ARTICLE IV
MEETINGS OF THE BOARD
Section 1. First Meeting. The first meeting of each newly elected Board of
Directors shall be held at the location of and immediately following the annual
meeting of stockholders, and no notice of such meeting shall be necessary to the
newly elected directors in order legally to constitute the meeting, provided a
quorum shall be present; or the Board may meet at such place and time as shall
be fixed by the consent in writing of all the directors. All meetings of the
Board of Directors may be held at such place, either within or without the State
of Delaware, as from time to time shall be determined by the Board of Directors.
Section 2. Regular Meetings. Regular meetings of the Board may be held at
such time and place and on such notice, if any, as shall be determined from time
to time by the Board.
Section 3. Special Meetings. Special meetings of the Board may be called by
the President or the Chairman of the Board on twenty-four hours' notice to each
director, delivered either personally or by mail or by telegram or telecopier.
Special meetings shall be called by the President or the Secretary in like
manner and on like notice on the written request of one director.
Section 4. Quorum and Voting. At all meetings of the Board, a majority of
the directors at the time in office shall be necessary and sufficient to
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
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of Directors, except as may be otherwise specifically provided by statute, the
certificate of incorporation or these bylaws. If a quorum shall not be present
at any meeting 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 5. Telephone Meetings. Directors may attend any meeting of the
Board or any committee thereof by conference telephone, radio, television or
similar means of communication by means of which all persons participating in
the meeting can hear each other, and all members so attending shall be deemed
present at the meeting for all purposes including the determination of whether a
quorum is present.
Section 6. Action by Written Consent. Any action required or permitted to
be taken by the Board or any committee thereof, under the applicable provisions
of any statute, the certificate of incorporation, or these bylaws, may be taken
without a meeting if a consent in writing, setting forth the action so taken, is
signed by all the members of the Board or committee, as the case may be.
ARTICLE V
COMMITTEES
Section 1. Executive Committee. The Board of Directors, by resolution
adopted by a majority of the whole Board, may designate one or more directors to
constitute an Executive Committee, which Committee, to the extent provided in
such resolution, shall have and may exercise all of the authority of the Board
of Directors in the business and affairs of the corporation except where action
by the Board of Directors is expressly required by statute. The Executive
Committee shall keep regular minutes of its proceedings and report the same to
the Board when required.
Section 2. Other Committees. The Board of Directors may similarly create
other committees for such terms and with such powers and duties as the Board
deems appropriate.
Section 3. Committee Rules; Quorum. Each committee may adopt rules
governing the method of calling and time and place of holding its meetings. No
committee shall have power or authority in reference to amending the certificate
of incorporation (except that a committee may, to the extent authorized in the
resolution or resolutions providing for the issuance of shares of stock adopted
by the board of directors as provided in Section 151(a) of the General
Corporation Law, fix any of the preferences or rights of the shares), adopting
an agreement of merger or consolidation, recommending to the stockholders a
dissolution of the Corporation or a revocation of dissolution, or amending these
bylaws; provided further, that unless the resolution expressly so provides, no
such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock. Unless otherwise provided by the Board of
Directors, a majority of any committee shall constitute a quorum for the
transaction of business, and the act of a majority of the members of such
committee present at a meeting at which a quorum is present shall be the act of
such committee.
ARTICLE VI
COMPENSATION OF DIRECTORS
The Board of Directors shall have authority to determine, from time to
time, the amount of compensation, if any, which shall be paid to its members for
their services as directors and as members of committees. The Board shall also
have power in its discretion to provide for and to pay to directors rendering
services to the corporation not ordinarily rendered by directors as such,
special compensation appropriate to the value of such services as determined by
the Board from time to time. Nothing herein contained shall be construed to
preclude any director from serving the corporation in any other capacity and
receiving compensation therefor.
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ARTICLE VII
NOTICES
Section 1. Methods of Notice. Whenever any notice is required to be given
to any stockholder, director or committee member under the provisions of any
statute, the certificate of incorporation or these bylaws, such notice shall be
delivered personally or shall be given in writing by mail addressed to such
stockholder, director or committee member at such address as appears on the
books of the corporation, and such notice shall be deemed to be given at the
time when the same shall be deposited in the United States mail with postage
thereon prepaid. Notice to directors and committee members may also be given by
telegram, which notice shall be deemed to be given at the time it is delivered
to the telegraph office, or by telecopy, which notice shall be deemed to be
given at the time it is transmitted or in person, which notice shall be deemed
to be given when received.
Section 2. Waiver of Notice. Whenever any notice is required to be given to
any stockholder, director or committee member under the provisions of any
statute, the certificate of incorporation or these bylaws, 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 the giving of
such notice. Attendance at any meeting shall constitute a waiver of notice
thereof except as otherwise provided by statute.
ARTICLE VIII
OFFICERS
Section 1. Executive Officers. The executive officers of the corporation
shall consist of at least a President and a Secretary, each of whom shall be
elected by the Board of Directors. The Board of Directors may also elect as
officers of the corporation a Chairman of the Board, one or more Vice
Presidents, one or more of whom may be designated Executive or Senior Vice
Presidents and may also have such descriptive titles as the Board shall deem
appropriate, and a Treasurer. Any two or more offices may be held by the same
person.
Section 2. Election and Qualification. The Board of Directors at its first
meeting after each annual meeting of stockholders shall elect the officers of
the corporation.
Section 3. Other Officers and Agents. The Board may elect or appoint
Assistant Vice Presidents, Assistant Secretaries and Assistant Treasurers, and
such other officers and agents as it shall deem necessary, who shall hold their
offices for such terms and shall exercise such powers and perform such duties as
shall be determined from time to time by the Board of Directors.
Section 4. Salaries. The salaries of all officers of the corporation shall
be fixed by the Board of Directors except as otherwise directed by the Board.
Section 5. Term, Removal and Vacancies. The officers of the corporation
shall hold office until their successors are chosen and qualify. Any officer or
agent of the corporation may be removed at any time by the affirmative vote of a
majority of the Board of Directors, or by the President. Any vacancy occurring
in any office of the corporation may be filled by the Board of Directors or
otherwise as provided in this Article.
Section 6. Execution of Instruments. The Chairman of the Board and the
President (and such other officers as are authorized thereunto by resolution of
the Board of Directors) may execute in the name of the corporation bonds, notes,
debentures and other evidences of indebtedness, stock certificates, deeds,
mortgages, deeds of trust, indentures, contracts, leases, agreements and other
instruments, requiring a seal under the seal of the corporation, and may execute
such documents where not requiring a seal, except where such documents are
required by law to be otherwise signed and executed, and except where the
signing and execution thereof shall be exclusively delegated to some other
officer or agent of the corporation.
Section 7. Duties of Officers. The duties and powers of the officers of the
corporation shall be as provided in these bylaws, or as provided for pursuant to
these bylaws, or (except to the extent inconsistent with these bylaws or with
any provision made pursuant hereto) shall be those customarily exercised by
corporate officers holding such offices.
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Section 8. Chairman of the Board. The Chairman of the Board shall preside
when present at all meetings of the Board of Directors. He shall advise and
counsel the other officers of the corporation and shall exercise such powers and
perform such duties as shall be assigned to or required of him from time to time
by the Board of Directors. The Chairman of the Board may, if so designated by
the Board of Directors, be the Chief Executive Officer of the corporation; in
such event he shall have all of the powers granted by the bylaws to the
President and from time to time may delegate all, or any, of his powers and
duties to the President.
Section 9. President. The President shall preside at all meetings of the
stockholders and shall be ex-officio a member of all standing committees, have
general powers of oversight, supervision and management of the business and
affairs of the corporation, and see that all orders and resolutions of the Board
of Directors are carried into effect.
In the event another executive officer has been designated Chief Executive
Officer of the corporation by the Board of Directors, then (i) such other
executive officer shall have all of the powers granted by the bylaws to the
President; and (ii) the President shall, subject to the powers of supervision
and control thereby conferred upon the Chief Executive Officer, be the chief
operating officer of the corporation and shall have all necessary powers to
discharge such responsibility including general supervision of the affairs of
the corporation and general and active control of all of its business.
The President shall perform all the duties and have all the powers of the
Chairman of the Board in the absence of the Chairman of the Board.
Section 10. Vice Presidents. The Vice Presidents in the order determined by
the Board of Directors shall, in the absence or disability of the President,
perform the duties and exercise the powers of the President, and shall perform
such other duties as the Board of Directors, the Chairman of the Board and the
President may prescribe.
Section 11. Secretary. The Secretary shall attend all meetings of the Board
of Directors and all meetings of the stockholders and record all votes and the
minutes of all proceedings in a book to be kept for that purpose and shall
perform like duties for the committees of the Board of Directors when required.
Except as may be otherwise provided in these bylaws, he shall give, or cause to
be given, notice of all meetings of the stockholders and special meetings of the
Board of Directors, and shall perform such other duties as may be prescribed by
the Board of Directors and the President. He shall keep in safe custody the seal
of the corporation, if any, and shall have authority to affix the same to any
instrument requiring it, and when so affixed it may be attested by his
signature. The Board of Directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by his
signature. In the absence of the Treasurer and all Assistant Treasurers, the
Secretary shall perform all the duties and have all the powers of the Treasurer.
Section 12. Assistant Secretaries. The Assistant Secretaries in the order
determined by the Board of Directors shall, in the absence or disability of the
Secretary, perform the duties and exercise the powers of the Secretary and shall
perform such other duties as the Board of Directors, the Chairman of the Board
and President may prescribe. Assistant secretaries may be appointed by the
president without prior approval of the board of directors.
Section 13. 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 monies and other valuable effects in the name and to the credit of
the corporation in such depositories as may be designated by the Board of
Directors. He shall disburse the funds of the corporation as may be ordered by
the Board, taking proper vouchers for such disbursements, and shall render to
the Board of Directors, the Chairman of the Board and the President, whenever
they may require it, an account of all of his transactions as Treasurer and of
the financial condition of the corporation.
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Section 14. Assistant Treasurers. The Assistant Treasurers in the order
determined by the Board of Directors shall, in the absence or disability of the
Treasurer, perform the duties and exercise the powers of the Treasurer and shall
perform such other duties as the Board of Directors, the Chairman of the Board
and the President may prescribe.
ARTICLE IX
SHARES AND STOCKHOLDERS
Section 1. Certificates Representing Shares. Every holder of stock in the
corporation shall be entitled to have a certificate, signed by, or in the name
of the corporation by, the Chairman or Vice Chairman of the Board of Directors,
or the President or a Vice President and the Treasurer or an Assistant Treasurer
or the Secretary or an Assistant Secretary of the corporation, certifying the
number of shares owned by him in the corporation. The signature of any such
officer may be facsimile. In case any officer who has signed or whose facsimile
signature has been placed upon such certificate shall have ceased to be such
officer before such certificate is issued, it may be issued by the corporation
with the same effect as if he were such officer at the date of its issuance. If
the corporation shall be authorized to issue more than one class of stock or
more than one series of any class, the powers, designations, preferences and
relative, participating, optional or other special rights of each class of stock
or series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights shall be set forth in full or summarized on the face
or back of the certificate which the corporation shall issue to represent such
class or series of stock, provided that, except as otherwise provided in Section
202 of the General Corporation Law of the State of Delaware, in lieu of the
foregoing requirements, there may be set forth on the face or back of the
certificate which the corporation shall issue to represent such class or series
of stock a statement that the corporation will furnish without charge to each
stockholder who so requests the designations, preferences and relative,
participating, optional or other special rights of each class or series thereof
and the qualifications, limitations or restrictions of such preferences and/or
rights.
Section 2. Transfer of Shares. Subject to valid transfer restrictions and
to stop-transfer orders directed in good faith by the corporation to any
transfer agent to prevent possible violations of federal or state securities
laws, rules or regulations, or for any other lawful purpose, upon surrender to
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 upon its books.
Section 3. Fixing Record Date.
(a) 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, 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 record date shall not be more
than sixty nor less than ten days before the date of such meeting. If no record
date is fixed by the Board of Directors, the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders shall
be at the close of business on the day next preceding the date on which notice
is given, or, if notice is waived, at the close of business on the date next
preceding the day on which the meeting is held. A determination of stockholders
of record entitled to notice of or to vote at a meeting of stockholders shall
apply to any adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting.
(b) 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 days after the date upon
which the resolution fixing the record date is adopted by the Board of
Directors. If no record date has been fixed by the Board of Directors, 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 this Section, 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
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business, or an officer or agent of the corporation having custody of the book
in which proceedings of meetings of stockholders are recorded. Delivery made to
the corporation's registered office 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
statute, 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 day on which the Board of Directors adopts the resolution taking such
prior action.
(c) In order that the corporation may determine the stockholders
entitled to receive payment of any dividend or other distribution or allotment
of any rights or the stockholders entitled to receive 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 a record date, which record date
shall not precede the date upon which the resolution fixing the record date is
adopted, and which record date shall be not more than sixty days prior to such
action. If no record date is fixed, the record date for determining stockholders
for any such purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating thereto.
Section 4. Registered Stockholders. The corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of any share or shares to receive dividends, and to vote as such owner, and for
all other purposes as such owner; and the corporation shall not be bound to
recognize any equitable or other claim to or interest in such share or shares on
the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by the laws of the State of
Delaware.
Section 5. Lost Certificates. The Board of Directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates, the Board of
Directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificate or
certificates, or his legal representative, to advertise the same in such manner
as it shall require and/or give the corporation a bond in such sum as it may
direct as indemnity against any claim that may be made against the corporation
with respect to the certificate alleged to have been lost, stolen or destroyed.
ARTICLE X
INDEMNIFICATION
(a) 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,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that he is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
(b) 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 by or in the right of the corporation to procure a judgment in its favor
by reason of the fact that he is or was a director, officer, employee or agent
of the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including
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attorneys' fees) actually and reasonably incurred by him in connection with the
defense or settlement of such action or suit if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the corporation and except that no indemnification shall be made in respect of
any claim, issue or matter as to which such person shall have been adjudged to
be liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
(c) To the extent that a director, officer, employee or agent of the
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (a) and (b), or in defense
of any claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
(d) Any indemnification under subsections (a) and (b) (unless ordered
by a court) shall be made by the corporation only as authorized in the specific
case upon a determination that indemnification of the director, officer,
employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in subsections (a) and (b). Such
determination shall be made (1) by the Board of Directors by a majority vote of
a quorum consisting of directors who were not parties to such action, suit, or
proceeding, or (2) if such a quorum is not obtainable, or, even if obtainable a
quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (3) by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or investigative
action, suit or proceeding shall be paid by the corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of the director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by
the corporation as authorized in this Article X. Such expenses incurred by other
employees or agents may be so paid upon such terms and conditions, if any, as
the Board of Directors deems appropriate.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this Article X shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under the Certificate of Incorporation,
any agreement or vote of stockholders or disinterested directors or otherwise,
both as to action in his official capacity and as to action in another capacity
while holding such office.
(g) The corporation shall have the power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the corporation would have the power to indemnify him
against such liability under the provisions of this Article X.
(h) For purposes of this Article X, references to "the corporation"
shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, and employees
or agents, so that any person who is or was a director, officer, employee or
agent of such constituent corporation, or is or was serving at the request of
such constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
shall stand in the same position under the provisions of this Article X with
respect to the resulting or surviving corporation as he would have with respect
to such constituent corporation if its separate existence had continued.
(i) For purposes of this Article X, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to any
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employee benefit plan; and references to "serving at the request of the
corporation" shall include any service as a director, officer, employee or agent
of the corporation which imposes duties on, or involves services by, such
director, officer, employee, or agent with respect to an employee benefit plan,
its participants or beneficiaries; and a person who acted in good faith and in a
manner he reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the corporation" as referred to in
this Article X.
(j) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article X shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
ARTICLE XI
GENERAL
Section 1. Dividends. Dividends upon the capital stock of the corporation,
subject to the provisions of the certificate of incorporation, if any, or of the
resolutions, if any, providing for any series of stock, may be declared by the
Board of Directors at any meeting thereof, or by the Executive Committee at any
meeting thereof. Dividends may be paid in cash, in property or in shares of the
capital stock of the corporation, subject to the provisions of the certificate
of incorporation or of the resolutions, if any, providing for any series of
stock.
Section 2. Reserves. Before payment of any dividend, there may be set aside
out of any funds of the corporation available for dividends such sum or sums as
the directors from time to time, in their absolute discretion, deem proper as a
reserve fund to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose or purposes as the directors shall think conducive to the interests of
the corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
Section 3. Shares of Other Corporations. The Chairman of the Board, the
President and any Vice President is authorized to vote, represent and exercise
on behalf of the corporation all rights incident to any and all shares of any
other corporation or other entity standing in the name of the corporation. The
authority herein granted to said officer may be exercised either by said officer
in person or by any person authorized so to do by proxy or power of attorney
duly executed by said officer. Notwithstanding the above, however, the Board of
Directors, in its discretion, may designate by resolution any additional person
to vote or represent said shares of other corporations and other entities.
Section 4. Checks. All checks, drafts, bills of exchange or demands for
money of the corporation shall be signed by such officer or officers or such
other person or persons as the Board of Directors may from time to time
designate.
Section 5. Corporate Records. The corporation shall keep at its registered
office or principal place of business, or at the office of its transfer agent or
registrar, a record of its stockholders giving the names and addresses of all
stockholders and the number and class and series, if any, of shares held by
each. All other books and records of the corporation may be kept at such place
or places within or without the State of Delaware as the Board of Directors may
from time to time determine.
Section 6. Fiscal Year. The fiscal year of the corporation shall be fixed
by the Board of Directors; if not so fixed, it shall be the calendar year.
Section 7. Interested Directors; Quorum. 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 of directors or committee thereof which
authorizes the contract or transaction, or solely because his or their votes are
counted for such purpose, if:
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(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 of directors 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. Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the board of directors or a committee which
authorizes the contract or transaction.
ARTICLE XII
AMENDMENTS
These bylaws may be altered, amended or repealed or new bylaws may be
adopted at any annual meeting of the stockholders or at any special meeting of
the stockholders at which a quorum is present or represented, by the affirmative
vote of the holders of a majority of the shares entitled to vote at such meeting
and present or represented thereat, or by the affirmative vote of a majority of
the whole Board of Directors at any regular meeting of the Board or at any
special meeting of the Board, provided notice of the proposed alteration,
amendment or repeal or the adoption of new bylaws is set forth in the notice of
such meeting.
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