EXHIBIT 3.2.1
As Amended Effective September 13, 2001
BYLAWS
OF
TRINITY INDUSTRIES, INC.
ARTICLE I.
Offices
Section 1. The registered office shall be located in the City of
Wilmington, County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places
within or 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. Meetings of the stockholders for any purpose shall be held at
such time and place, either within or without the State of Delaware, as shall be
designated from time to time by the Board of Directors and stated in the notice
of the meeting or in a duly executed waiver of notice thereof.
Section 2. The annual meeting of stockholders shall be held on such date
and at such time as shall be designated from time to time by the Board of
Directors and stated in the notice of the meeting. At such meeting, the
stockholders entitled to vote thereat shall elect by a plurality vote a Board of
Directors. Nominations for election to the Board of Directors shall be made at
such meeting only by or at the direction of the Board of Directors, by a
nominating committee or person
appointed by the Board of Directors, or by a stockholder of the corporation
entitled to vote for the election of directors at the meeting who complies with
the notice procedures set forth in this Section 2. Such nominations, other than
those made by or at the direction of the Board of Directors, shall be made
pursuant to timely notice in writing 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 sixty days nor
more than ninety days prior to the anniversary date of the immediately preceding
annual meeting of stockholders; provided, however, that in the event that the
annual meeting is called for a date that is not within thirty days before or
after such anniversary date, notice by the stockholder in order to be timely
must be so received not later than the close of business on the later of (i) the
sixtieth day prior to such annual meeting or (ii) the tenth day following the
day on which public announcement of the date of such meeting is first made. For
purposes of these By-Laws, "public announcement" shall mean disclosure in a
press release reported by the Dow Jones News Service, Associated Press or a
comparable national news service or in a document publicly filed by the
Corporation with the Securities and Exchange Commission pursuant to Section 13,
14 or 15(d) of the Exchange Act. Such stockholder's notice to the Secretary
shall set forth (a) as to each person whom the stockholder proposes to nominate
for election or re-election as a director, (i) the name, age, business address
and residence address of the person, (ii) the principal occupation or employment
of the person, (iii) the class and number of shares of capital stock of the
corporation which are beneficially owned by the person, and (iv) any other
information relating to the person that is required to be disclosed in
solicitations for proxies for election of directors pursuant to Regulation 14A
under the Securities Exchange Act of 1934, as amended; and (b) as to the
stockholder giving the notice, (i) the name and record address of the
stockholder, (ii) the class and number of shares of capital stock of the
corporation which are
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beneficially owned by the stockholder, (iii) a description of all arrangements
or understandings between such stockholder and each proposed nominee and any
other person or persons (including their names) pursuant to which the
nomination(s) are to be made by such stockholder, (iv) a representation that
such stockholder intends to appear in person or by proxy at the meeting to
nominate the persons named in its notice and (v) any other information relating
to such stockholder that would be required to be disclosed in a proxy statement
or other filings required to be made in connection with solicitations of proxies
for election of directors pursuant to Section 14 of the Exchange Act and the
rules and regulations promulgated thereunder. The corporation may require any
proposed nominee to furnish such other information as may reasonably be required
by the corporation to determine the eligibility of such proposed nominee to
serve as director of the corporation. No person shall be eligible for election
as a director of the corporation unless nominated in accordance with the
procedures set forth herein.
The Chairman of the meeting shall, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with the
foregoing procedure, and if he should so determine, he shall so declare to the
meeting and the defective nomination shall be disregarded.
At each annual meeting of the stockholders, only such business shall be
conducted as shall have properly been brought before the meeting. To be properly
before the meeting, the business to be conducted must be specified in the notice
of meeting (or any supplement thereto) given by or at the direction of the Board
of Directors, otherwise properly brought before the meeting by or at the
direction of the Board of Directors, or otherwise properly brought before the
meeting by a stockholder entitled to vote at the meeting. In addition to any
other applicable requirements, for business to be properly brought before the
meeting by a stockholder, the stockholder must have
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given timely notice thereof in writing 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 sixty days
nor more than ninety days prior to the anniversary date of the immediately
preceding annual meeting of stockholders; provided, however, that in the event
that the annual meeting is called for a date that is not within thirty days
before or after such anniversary date, notice by the stockholder in order to be
timely must be so received not later than the close of business on the later of
(i) the sixtieth day prior to such annual meeting or (ii) the tenth day
following the day on which public announcement of the date of such meeting is
first made. A stockholder's notice to the Secretary of the corporation shall set
forth as to each matter that the stockholder proposes to bring before the annual
meeting, (i) a brief description of the business desired to be brought before
the annual meeting and the reasons for conducting such business at the annual
meeting, (ii) the name and record address of the stockholder proposing such
business, (iii) the class and number of shares of the corporation which are
beneficially owned by the stockholder, (iv) a description of all arrangements or
understandings between such stockholder and any other person or persons
(including their names) in connection with the proposal of such business by such
stockholder and any material interest of such stockholder in such business and
(v) a representation that such stockholder intends to appear in person or by
proxy at the annual meeting to bring such business before the meeting.
Notwithstanding the foregoing provisions of this Section 2, a stockholder
seeking to have a proposal included in the corporation's proxy statement shall
comply with the requirements of Regulation 14A under the Securities Exchange Act
of 1934, as amended (including, but not limited to, Rule 14a-8 or its successor
provision).
Notwithstanding anything in these By-Laws to the contrary, no business
shall be conducted at the annual meeting except in accordance with the
procedures set forth in this Section 2; provided,
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however, that nothing in this Section 2 shall be deemed to preclude discussion
by any stockholder of any business properly brought before the annual meeting in
accordance with the procedures set forth in this Section 2.
The Chairman of the meeting shall, if the facts warrant, determine and
declare to the meeting that the business sought to be so conducted was not
properly brought before the meeting in accordance with the provisions of this
Section 2, 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 3. Special meetings of the stockholders may be called by the chief
executive officer or a majority of the Board of Directors.
Section 4. Written or printed notice stating the place, day and hour of the
meeting and, in the case of a special meeting, the purpose or purposes for which
the meeting is called, shall be given not less than ten (10) nor more than sixty
(60) days before the date of the meeting, either personally or by mail, by or at
the direction of the President, the Secretary, or the officer or person calling
the meeting, to each stockholder of record entitled to vote at such meeting.
Section 5. Business transacted at any special meeting shall be confined to
the purposes stated in the notice thereof.
Section 6. The holders of a majority of the shares entitled to vote,
represented in person or by proxy, shall constitute a quorum at meetings of
stockholders except as otherwise provided by any applicable statute. If,
however, a quorum shall not be present or represented at any meeting of the
stockholders, the presiding officer at the meeting or the stockholders present
in person or represented by proxy, shall have the power to adjourn the meeting
from time to time, without notice other than announcement at the meeting, until
a quorum shall be present or represented. At such
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adjourned meeting at which a quorum shall be present or represented, any
business may be transacted which might have been transacted at the meeting as
originally notified. In addition, the presiding officer at any meeting of
stockholders shall have the power to adjourn the meeting at the request of the
Board of Directors if the Board of Directors determines that adjournment is
necessary or appropriate to enable stockholders to consider fully information
which the Board of Directors determines has not been made sufficiently or timely
available to stockholders or to otherwise exercise effectively their voting
rights.
Section 7. Except as provided in Section 2 hereof with respect to the
election of the Board of Directors, at a meeting at which a quorum is present,
the vote of the holders of a majority of the shares present in person or
represented by proxy at the meeting and entitled to vote shall be the act of the
stockholders' meeting, unless the vote of a greater number is required by law or
the Certificate of Incorporation.
Section 8. Each outstanding share, regardless of class, shall be entitled
to one vote on each matter submitted to a vote at a meeting of stockholders,
except to the extent that the voting rights of the shares of any class are
limited or denied by the Certificate of Incorporation.
Section 9. At any meeting of the stockholders, every stockholder having the
right to vote may vote either in person, or by proxy appointed by an instrument
in writing as to a particular meeting and any adjournment or adjournments
thereof subscribed by such stockholder or by his duly authorized
attorney-in-fact. A proxy shall be revocable unless expressly provided therein
to be irrevocable and unless otherwise provided by law.
Section 10. The officer or agent having charge of the stock transfer books
shall make, at least ten (10) 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
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of and number of shares held by each, which list, for a period of ten (10) days
prior to such meeting, shall be kept on file at the registered office of the
corporation, and shall be subject to inspection by any stockholder at any time
during usual business hours. 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 whole time of the meeting. The original stock transfer
books shall be prima facie evidence as to who are the stockholders entitled to
examine such list or transfer book or to vote at any such meeting of
stockholders.
Section 11. Notwithstanding any inconsistent provision which may be
contained in these By-Laws, 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 on 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. 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 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 days of the
date upon 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
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proceedings of stockholders' meeting 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 III.
Directors
Section 1. The number of directors of the corporation shall be nine (9).
The directors shall be elected at the annual meeting of the stockholders, except
as provided in Section 2 of this Article, and each director elected shall hold
office until his successor is elected and qualified; provided, any director may
be removed at any time, with or without cause, by the holders of a majority of
the shares entitled to vote, represented in person or by proxy, at any duly
constituted meeting of stockholders called for the purpose of removing any such
director or directors. Directors need not be residents of the State of Delaware
or stockholders of the corporation.
Section 2. Any vacancy occurring in the Board of Directors may be filled by
the affirmative vote of a majority of the remaining directors though less than a
quorum of the Board of Directors. A director elected to fill a vacancy shall be
elected for the unexpired term of his predecessor in office. Any newly created
directorship(s) resulting from an increase in the authorized number of directors
elected by all stockholders entitled to vote as a single class shall be filled
by the affirmative vote of a majority of the remaining directors, even though
less than a quorum of the proposed Board of Directors.
Section 3. The business and affairs of the corporation shall be managed by
its Board of
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Directors which may exercise all such powers of the corporation and do all such
lawful acts and things as are not by statute, the Certificate of Incorporation,
or these Bylaws directed or required to be exercised and done by the
stockholders.
Section 4. Meetings of the Board of Directors, regular or special, may be
held either within or without the State of Delaware.
Section 5. The first meeting of each newly elected Board of Directors shall
be held at such time and place as shall be fixed by the vote of the stockholders
at the annual meeting, 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. In the event of the failure of the stockholders to fix
the time and place of such first meeting of the newly elected Board of
Directors, or in the event such meeting is not held at the time and place so
fixed by the stockholders, the meeting may be held at such time and place as
shall be specified in a notice given as hereinafter provided for special
meetings of the Board of Directors, or as shall be specified in a written waiver
signed by all of the directors.
Section 6. Regular meetings of the Board of Directors may be held at such
time and at such place as shall from time to time be determined by the Board.
Special meetings of the Board of Directors may be called by the Secretary on the
written request of two directors.
Section 7. Written notice of regular meetings of the Board of Directors
shall not be required. Special meetings of the Board of Directors may be called
upon twenty-four (24) hours' notice to each director, or such shorter period of
time as the person calling the meeting deems appropriate in the circumstances,
either personally or by mail, telephone or telegram. Neither the business to be
transacted at, nor the purposes of, any special meeting of the Board of
Directors need be specified in the notice or waiver of notice of such special
meeting.
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Section 8. A majority of the directors shall constitute a quorum for the
transaction of business, and the act of the majority of the directors present at
a meeting at which a quorum is present shall be the act of the Board of
Directors, unless a greater number is required by the Certificate of
Incorporation. If a quorum shall not be present at any meeting of the Board of
Directors, the directors present thereat may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present.
Section 9. The Board of Directors, by resolution adopted by a majority of
the whole Board, may designate three or more directors to constitute an
executive committee, which committee, unless its authority shall be otherwise
expressly limited by 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 of the Board of Directors is specified by
statute. Vacancies in the membership of the committee shall be filled by the
Board of Directors at a regular or special meeting of the Board of Directors.
The executive committee shall keep regular minutes of its proceedings and report
the same to the Board when required. The designation of such committee and the
delegation thereto of authority shall not operate to relieve the Board of
Directors, or any member thereof, of any responsibility imposed upon it or him
by law.
ARTICLE IV.
Notices
Section 1. Except as otherwise provided in these Bylaws, notices to
directors and stockholders shall be in writing, and delivered personally or
mailed to the directors or stockholders at their addresses appearing on the
books of the corporation. If mailed, such notice shall be deemed to be given
when deposited in the United States mail with postage thereon prepaid. Notice to
directors may also be given by telegram.
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Section 2. Whenever any notice is required to be given to any stockholder
or director under the provisions of the statutes, the Certificate of
Incorporation or these Bylaws, a waiver thereof in writing, signed by the person
or persons entitled to such notice, whether before or after the time stated
therein, shall be equivalent to the giving of such notice.
Section 3. Attendance of a director at a meeting shall constitute a waiver
of notice of such meeting, except where a director attends a meeting for the
express purpose of objecting to the transaction of any business on the ground
that the meeting is not lawfully called or convened.
ARTICLE V.
Officers
Section 1. The executive officers of the corporation shall consist of a
President, one or more Vice Presidents, a Secretary and a Treasurer and may
include a Chairman of the Board, one or more Senior Vice Presidents and one or
more Executive Vice Presidents, each of whom shall be elected by the Board of
Directors.
Section 2. The Board of Directors, at its first meeting after each annual
meeting of stockholders, shall choose a President, one or more Vice Presidents,
a Secretary and a Treasurer, none of whom need be a member of the Board, and may
appoint one of their number Chairman of the Board.
Section 3. Such other officers and assistant officers and agents as may be
deemed necessary may be appointed by the chief executive officer of the
corporation, including a Chairman, a President, and one or more Vice Presidents
of the respective Divisions. The President or the Vice Presidents of the
Division who, in the order of their seniority, unless otherwise determined by
the chief executive officer of the corporation, shall perform the duties of the
Chairman or President, as the
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case may be, of the Division in the absence or disability of the Chairman or
President, as the case may be, of that Division. Each President or Vice
President, as the case may be, of a Division shall perform such other duties and
have such other powers as the chief executive officer of the corporation or the
Chairman or President, as the case may be, of that Division shall prescribe.
Division officers shall hold office until their respective successors shall have
been chosen and shall have qualified. Any Division officer appointed by the
chief executive officer may be removed by the chief executive officer whenever,
in his judgment, the best interests of the corporation will be served thereby.
Any vacancy occurring in any office of a Division by death, resignation, removal
or otherwise shall be filled by the chief executive officer of the corporation.
Section 4. The salaries of all executive officers of the corporation shall
be fixed by the Board of Directors or by a committee of one or more directors,
the members of which shall be selected by the Board of Directors and which,
unless its authority shall be otherwise limited by resolution of the Board of
Directors, shall have the power to fix the salaries of all executive officers of
the corporation.
Section 5. The executive officers of the corporation shall hold office
until their respective successors shall have been chosen and shall have
qualified. Any officer or agent or member of the executive committee elected or
appointed by the Board of Directors may be removed by the Board of Directors
whenever, in its judgment, the best interests of the corporation will be served
thereby, but such removal shall be without prejudice to the contract rights, if
any, of the person so removed. Any vacancy occurring in any executive office of
the corporation by death, resignation, removal or otherwise shall be filled by
the Board of Directors.
Section 6. The Board of Directors may designate whether the Chairman of the
Board, if such an officer shall have been appointed, or the President, shall be
the chief executive officer of the corporation. The officer so designated as the
chief executive officer shall preside at all meetings
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of the stockholders and the Board of Directors, and shall have such other powers
and duties as usually pertain to such office or as may be delegated by the Board
of Directors. The President shall have such powers and duties as usually pertain
to such office, except as the same may be modified by the Board of Directors.
Unless the Board of Directors shall otherwise delegate such duties, the chief
executive officer shall have general and active management of the business of
the corporation and shall see that all orders and resolutions of the Board of
Directors are carried into effect.
Section 7. The chief executive officer or his designee shall have the
authority to execute bonds, mortgages and other contracts requiring a seal,
under the seal of the corporation, except where required or permitted by law to
be otherwise signed and executed, and except where the signing and execution
thereof shall be expressly delegated by the Board of Directors to some other
officer or agent of the corporation.
Section 8. The Vice Presidents, in the order of their seniority, unless
otherwise 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. The Vice Presidents shall also have the authority to execute bonds,
mortgages and other contracts requiring a seal, under the seal of the
corporation, except where required or permitted by law to be otherwise signed
and executed, and except where the signing and execution thereof shall be
expressly delegated by the Board of Directors to some other officer or agent of
the corporation. The Vice Presidents shall perform such other duties and have
such other powers as the Board of Directors or the chief executive officer of
the corporation shall prescribe.
Section 9. The Secretary shall attend all meetings of the Board of
Directors and all meetings of the stockholders and shall record all the
proceedings of the meetings of the stockholders and of the Board of Directors in
a book to be kept for that purpose and shall perform
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like duties for the standing committees, when requested. 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 or the President, under whose supervision he shall be.
He shall keep in safe custody the seal of the corporation, and, when authorized
by the Board of Directors or directed by the President or any Vice President,
affix the same to any instrument requiring it and, when so affixed, it shall be
attested by his signature or by the signature of the Treasurer or any Assistant
Secretary.
Section 10. The Assistant Secretaries, in the order of their seniority,
unless otherwise 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. They shall perform such other duties and have such other powers as
the Board of Directors may from time to time prescribe.
Section 11. The Treasurer shall be the financial officer of the
corporation. He shall have the custody of the corporate funds and securities and
shall deposit all monies and other valuable effects in the name and to the
credit of the corporation in such depositaries as may be designated from time to
time by the Board of Directors. He shall disburse the funds of the corporation
as may be ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the President and the Board of Directors at
its regular meetings, or when the Board of Directors so requires, an account of
all his transactions as Treasurer. He shall also perform such other duties as
may be assigned to him by the Board of Directors.
Section 12. If required by the Board of Directors, the Treasurer shall give
the corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the Board of Directors for the faithful performance of the
duties of his office and for the restoration to the corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers,
vouchers,
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money and other property of whatever kind in his possession or under his control
belonging to the corporation.
Section 13. The Assistant Treasurers, in the order of their seniority,
unless otherwise 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. They shall perform such other duties and have such other powers as
the Board of Directors may from time to time prescribe.
ARTICLE VI.
Indemnification of Directors and Officers
Section 1. 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 or has agreed to become a director, officer
or Division officer of the corporation, or is or was serving or has agreed to
serve at the request of the corporation as a director, officer or Division
officer of another corporation, partnership, joint venture, trust or other
enterprise, or by reason of any action alleged to have been taken or omitted in
such capacity, against costs, charges, expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him or on his behalf in connection with such action, suit or proceeding and
any appeal therefrom, 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
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best interests of the corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
Section 2. 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 or has agreed to become a
director, officer or Division officer of the corporation, or is or was serving
or has agreed to serve at the request of the corporation as a director, officer
or Division officer of another corporation, partnership, joint venture, trust or
other enterprise, or by reason of any action alleged to have been taken or
omitted in such capacity, against costs, charges and expenses (including
attorneys' fees) actually and reasonably incurred by him or on his behalf in
connection with the defense or settlement of such action or suit and any appeal
therefrom, 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 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 of Delaware or the
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of such liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such costs, charges and expenses which the Court of Chancery or
such other court shall deem proper.
Section 3. Notwithstanding the other provisions of this Article, to the
extent that a director, officer or Division officer of the corporation has been
successful on the merits or otherwise, including, without limitation, the
dismissal of an action without prejudice, in defense of any action, suit or
proceeding referred to in Sections 1 and 2 of this Article, or in defense of any
claim, issue or matter therein, he shall be indemnified against all costs,
charges and expenses (including attorneys'
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fees) actually and reasonably incurred by him or on his behalf in connection
therewith.
Section 4. Any indemnification under Sections 1 and 2 of this Article
(unless ordered by a court) shall be paid by the corporation unless a
determination is 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, that indemnification of the
director, officer, employee or agent is not proper in the circumstances because
he has not met the applicable standard of conduct set forth in Sections 1 and 2
of this Article.
Section 5. Costs, charges and expenses (including attorneys' fees) incurred
by a person referred to in Sections 1 and 2 of this Article in defending a civil
or criminal action, suit or proceeding shall be paid by the corporation in
advance of the final disposition of such action, suit or proceeding; provided,
however, that the payment of such costs, charges and expenses incurred by a
director, officer or Division officer in his capacity as a director, officer or
Division officer (and not in any other capacity in which service was or is
rendered by such person while a director, officer or Division officer) in
advance of the final disposition of such action, suit or proceeding shall be
made only upon receipt of an undertaking by or on behalf of the director,
officer or Division officer to repay all amounts so advanced in the event that
it shall ultimately be determined that such director, officer or Division
officer is not entitled to be indemnified by the corporation as authorized in
this Article. The Board of Directors may, in the manner set forth above, and
upon approval of such director, officer or Division officer of the corporation,
authorize the corporation's counsel to represent such person, in any action,
suit or proceeding, whether or not the corporation is a party to such action,
suit or proceeding.
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Section 6. Any indemnification under Sections 1, 2 and 3, or advance of
costs, charges and expenses under Section 5 of this Article, shall be made
promptly, and in any event within 60 days, upon the written request of the
director, officer or Division officer. The right to indemnification or advances
as granted by this Article shall be enforceable by the director, officer or
Division officer in any court of competent jurisdiction, if the corporation
denies such request, in whole or in part, or if no disposition thereof is made
within 60 days. Such persons' costs and expenses incurred in connection with
successfully establishing his right to indemnification, in whole or in part, in
any such action shall also be indemnified by the corporation. It shall be a
defense to any such action (other than an action brought to enforce a claim for
the advance of costs, charges and expenses under Section 5 of this Article where
the required undertaking, if any, has been received by the corporation) that the
claimant has not met the standard of conduct set forth in Sections 1 or 2 of
this Article, but the burden of proving such defense shall be on the
corporation. Neither the failure of the corporation (including its Board of
Directors, its independent legal counsel, and its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he has met the applicable
standard of conduct set forth in Sections 1 or 2 of this Article, nor the fact
that there has been an actual determination by the corporation (including its
Board of Directors, its independent legal counsel, and its stockholders) that
the claimant has not met such applicable standard of conduct, shall be a defense
to the action or create a presumption that the claimant has not met the
applicable standard of conduct.
Section 7. The indemnification and advancement of costs, charges and
expenses provided by this Article shall not be deemed exclusive of any other
rights to which a person seeking indemnification or advancement of costs,
charges and expenses may be entitled under any law
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(common or statutory), agreement, 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 office or while employed by or acting
as agent for the corporation, and shall continue as to a person who has ceased
to be a director, officer or Division officer as to actions taken while he was
such a director, officer or Division officer, and shall inure to the benefit of
the estate, heirs, executors and administrators of such person. All rights to
indemnification under this Article shall be deemed to be a contract between the
corporation and each director, officer or Division officer of the corporation
who serves or served in such capacity at any time while this Article is in
effect. Any repeal or modification of this Article or any repeal or modification
of relevant provisions of the Delaware General Corporation Law or any other
applicable laws shall not in any way diminish any rights to indemnification of
such director, officer or Division officer or the obligations of the corporation
arising hereunder.
Section 8. In addition to the specific indemnification provided for herein,
the corporation shall indemnify each person who is or was or has agreed to
become a director, officer or Division officer of the corporation, or is or was
serving or has agreed to serve at the request of the corporation as a director,
officer or Division officer of another corporation, partnership, joint venture,
trust or other enterprise, to the fullest extent authorized or permitted (i) by
the General Corporation Law of Delaware, or any other applicable law, or by any
amendment thereof or other statutory provisions in effect on the date hereof, or
(ii) by the corporation's Certificate of Incorporation as in effect on the date
hereof. The corporation shall also advance expenses to any of the foregoing
individuals to the fullest extent authorized or permitted (i) by the General
Corporation Law of Delaware, or any other applicable law, or by any amendment
thereof or other statutory provision in effect on the date hereof, or (ii) by
the corporation's Certificate of Incorporation as in effect on the date hereof.
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Section 9. Notwithstanding the foregoing, the corporation shall have the
power to purchase and maintain insurance on behalf of any person who is or was
or has agreed to become a director, officer or Division officer of the
corporation, or is or was serving at the request of the corporation as a
director, officer or Division officer of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him or on his behalf 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.
Section 10. If this Article or any portion hereof shall be invalidated on
any ground by any court of competent jurisdiction, then the corporation shall
nevertheless indemnify each director, officer or Division officer of the
corporation as to costs, charges and expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement with respect to any action, suit
or proceeding, whether civil, criminal, administrative or investigative,
including an action by or in the right of the corporation, to the full extent
permitted by any applicable portion of this Article that shall not have been
invalidated and to the full extent permitted by applicable law.
ARTICLE VII.
Certificates for Shares
Section 1. The corporation shall deliver certificates representing all
shares to which stockholders are entitled; and such certificates shall be signed
by the President or a Vice President, and the Secretary or an Assistant
Secretary of the corporation, and may be sealed with the seal of the corporation
or a facsimile thereof. No certificate shall be issued for any share until the
consideration therefor has been fully paid. Each certificate representing shares
shall state upon the face thereof that the corporation is organized under the
laws of the State of Delaware, the name of
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the person to whom issued, the number and class and the designation of the
series, if any, which such certificate represents, and the par value of each
share represented by such certificate or a statement that the shares are without
par value.
Section 2. The signatures of the President or Vice President, and the
Secretary or Assistant Secretary, upon a certificate may be facsimiles if the
certificate is countersigned by a transfer agent, or registered by a registrar,
other than the corporation itself or an employee of the corporation. 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 the issuance.
Section 3. 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 or destroyed,
upon the making of an affidavit of that fact by the person claiming the
certificate of stock to be lost 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 or destroyed certificate or certificates, or his legal representative, to
advertise the same in such manner as it shall require and/or to 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 or destroyed.
Section 4. Upon surrender to the corporation or the transfer agent of the
corporation of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignment or authority to transfer, it shall be the
duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate, and record the transaction upon its books.
Section 5. For the purpose of determining stockholders entitled to notice
of or to vote at
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any meeting of stockholders or any adjournment thereof, or entitled to receive
payment of any dividend, or in order to make a determination of stockholders for
any other proper purpose, the Board of Directors may provide that the stock
transfer books shall be closed for a stated period but not to exceed, in any
case, sixty (60) days. If the stock transfer books shall be closed for the
purpose of determining stockholders entitled to notice of or to vote at a
meeting of stockholders, such books shall be closed for at least ten (10) days
immediately preceding such meeting. In lieu of closing the stock transfer books,
the Board of Directors may fix in advance a date as the record date for any such
determination of stockholders, such date in any case to be not more than sixty
(60) days, and, in case of a meeting of stockholders, not less than ten (10)
days prior to the date on which the particular action requiring such
determination of stockholders is to be taken. If the stock transfer books are
not closed and no record date is fixed for the determination of stockholders
entitled to notice of or to vote at a meeting of stockholders or any adjournment
thereof, or stockholders entitled to receive payment of a dividend, or in order
to make a determination of stockholders for any other proper purpose, the close
of business on the day next preceding the day on which notice of the meeting of
stockholders is given shall be the record date with respect to such meeting, and
the close of business on the day on which the Board of Directors adopts a
resolution declaring a dividend or with respect to any other proper purpose, as
the case may be, shall be the record date for the determination of stockholders
with respect thereto. When a determination of stockholders entitled to vote at
any meeting of stockholders has been made as provided in this section, such
determination shall apply to any adjournment thereof, except where the
determination has been made through the closing of stock transfer books and the
stated period of closing has expired.
Section 6. The corporation shall be entitled to recognize the exclusive
rights of a person
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registered on its books as the owner of shares to receive dividends, and to vote
as such owner, and 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.
ARTICLE VIII.
General Provisions
Section 1. The Board of Directors may declare and the corporation may pay
dividends on its outstanding shares in cash, property, or its own shares
pursuant to law and subject to the provisions of its Certificate of
Incorporation.
Section 2. The Board of Directors may by resolution create a reserve or
reserves out of earned surplus for any purpose or purposes, and may abolish any
such reserve in the same manner.
Section 3. The Board of Directors must, when requested by the holders of at
least one-third of the outstanding shares of the corporation, present written
reports of the business and financial affairs of the corporation.
Section 4. All checks or demands for money and notes 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 as provided in these
bylaws.
Section 5. The fiscal year of the corporation shall be fixed by resolution
of the Board of Directors.
Section 6. The corporate seal shall have inscribed thereon the name of the
corporation and may be used by causing it or a facsimile thereof to be impressed
or affixed or in any other manner reproduced.
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ARTICLE IX.
Amendments
These Bylaws may be altered, amended or repealed at any regular or special
meeting of, or by the unanimous written consent of, the Board of Directors.
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