EXHIBIT 3.2(A)
AMENDED AND RESTATED BYLAWS
OF
UICI
[AS AMENDED AND RESTATED AS OF APRIL 28, 2004]
(Incorporated Under the Laws of the State of Delaware)
PREAMBLE
These Bylaws are subject to, and governed by, the General Corporation Law of
Delaware (the "Act") and the Certificate of Incorporation (the "Certificate") of
UICI (the "Company"). In the event of a direct conflict between the provisions
of these Bylaws and the mandatory provisions of the Act or the provisions of the
Certificate, such provisions of the Act or the Certificate, as the case may be,
will be controlling.
ARTICLE I
Offices
1.01 Registered Office and Agent. The registered office and registered agent of
the Company shall be as from time to time set forth in the Certificate or as
authorized from time to time by the Board of Directors of the Company and set
forth in a statement filed with the Secretary of State of Delaware.
1.02 Other Offices. The Company 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 Company may require.
ARTICLE II
Stockholders
2.01 Annual Meetings. An annual meeting of stockholders of the Company shall be
held during each calendar year 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 shall elect directors and
transact such other business as may properly be brought before the meeting.
2.02 Special Meetings. Special meetings of the stockholders, for any purpose or
purposes, may be called by the Chairman of the Board, the President, the Board
of Directors or the holders of not less than one-tenth (1/10) of all the shares
entitled to vote at the meeting. Only such business shall be transacted at a
special meeting as may be stated or indicated in the notice of the meeting.
2.03 Place of Meetings. The annual meeting of stockholders may be held at any
place within or without the State of Delaware as may be designated by the Board
of Directors. Special meetings of stockholders may be held at any place within
or without the State of Delaware as may be designated by the person or persons
calling such special meeting as provided in Section 2.02. If no place for a
meeting is designated, it shall be held at the principal place of business.
2.04 Notice. Written or printed notice stating the place, day and hour of the
meeting and, in case of a special meeting, the purpose or purposes for which the
meeting is called, shall be delivered 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
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the direction of the Chairman of the Board, the President, the Secretary or the
person calling the meeting, to each stockholder of recorded entitled to vote at
the meeting.
2.05 Voting List. At least ten (10) days before each meeting of stockholders, a
complete list of the stockholders entitled to vote at such meeting, arranged in
alphabetical order, with the residence of each and the number of voting shares
held by each, shall be prepared by the Secretary. For a period of ten (10) days
prior to such meeting, such list shall be kept on file at the registered office
of the Company and shall be subject to inspection by any stockholder at any time
during usual business hours. The list shall be produced and kept at the time and
place of the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
2.06 Voting of Shares. Treasury shares, shares of the Company's own stock owned
by another corporation the majority of the voting stock of which is owned or
controlled by the Company, and shares of the Company's own stock held by another
corporation in a fiduciary capacity for the benefit of the Company or such
majority-owned corporation, shall not be shares entitled to be voted at any
meeting of stockholders or to be counted in determining the total number of
outstanding shares. Shares held by an administrator, executor, guardian or
conservator may be voted by him, either in person or by proxy, without transfer
of such shares into his name so long as such shares form a part of the estate
and are in the possession of the estate being served by him. Shares standing in
the name of a trustee may be voted by him, either in person or by proxy, only
after the shares have been transferred into his name as trustee. Shares standing
in the name of a receiver may be voted by such receiver, and shares held by or
under the control of a receiver may be voted by such receiver without transfer
of such shares into his name if authority to do so is contained in the court
order by which such receiver was appointed. Shares standing in the name of
another domestic or foreign corporation of any kind may be voted by such
officer, agent or proxy as the bylaws of such corporation may provide or, in the
absence of such provision, as the board of directors of such corporation may
determine. A stockholder whose shares are pledged shall be entitled to vote such
shares until they have been transferred into the name of the pledgee, and
thereafter, the pledgee shall be entitled to vote such shares.
2.07 Quorum. The holders of a majority of the shares of the Company's capital
stock issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall be requisite and shall constitute quorum at all
meetings of the Company's stockholders for the transaction of business, except
as otherwise provided by law, the Certificate or these Bylaws. If, however, such
quorum shall not be present or represented at any meeting of the Company's
stockholders, a majority of the stockholders entitled to vote thereat, 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. If the adjournment is for more than
thirty (30) days, or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting. At any reconvening of an
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.
2.08 Majority Vote; Withdrawal of Quorum. If a quorum is present in person or
represented by proxy at any meeting of the Company's stockholders, the vote of
the holders of a majority of the Company's outstanding shares entitled to be
voted thereat, present in person or represented by proxy at such meeting, shall
decide any question brought before such meeting, unless the question is one upon
which, by express mandatory provision shall govern and control the decision of
such question. The stockholders present at a duly convened meeting may continue
to transact business until adjournment, notwithstanding the withdrawal of the
holders of sufficient voting shares to leave less than a quorum.
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AS ADOPTED APRIL 28, 2004 PAGE 2
2.09 Method of Voting; Proxies. On each matter submitted to a vote at a meeting
of stockholders, every stockholder of record shall be entitled at every meeting
of stockholders to one (1) vote for every outstanding share of the Company's
capital stock standing in his name on the original stock transfer books of the
Company, except to the extent that the voting rights of the shares of any class
or classes are limited or denied by the Certificate. Such transfer books shall
be prima facie evidence as to the identity of stockholders entitled to vote. At
a 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
subscribed by such stockholder or by his duly authorized attorney-in-fact. No
proxy shall be valid after three (3) years from the date of its execution,
unless such instrument provides for a longer period. Each proxy shall be
revocable unless expressly provided therein to be irrevocable or unless
otherwise made irrevocable by law. Each proxy shall be filed with the Secretary
before or at the time of the meeting to which it relates.
2.10 Closing of Transfer Books; Record Date. For the purpose of determining
stockholders entitled to notice of or to vote at any meeting of stockholders or
any reconvening 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 of the Company
shall be closed for a stated period but not to exceed in any event sixty (60)
days. If the stock transfer books are 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 if no record date is
fixed for the determination of stockholders entitled to notice of or to vote at
a meeting of stockholders or entitled to receive payment of dividends, the day
next preceding the date on which the notice of the meeting is mailed or the date
on which the resolution of the Board of Directors declaring such dividend is
adopted, as the case may be, shall be the record date for such determination of
stockholders.
2.11 Presiding Officials at Meetings. Unless some other person or persons are
elected by vote of a majority of the shares then entitled to vote at a meeting
of stockholders, the Chairman of the Board (or, in the absence of the Chairman
of the Board, the Vice Chairman of the Board or, in the absence of the Vice
Chairman, the President) shall preside at and the Secretary shall prepare
minutes of each meeting of stockholders.
ARTICLE III
Directors
3.01 Management. The business and affairs of the Company shall be managed by the
Board of Directors who may exercise all such powers of the Company and do all
such lawful acts and things as are not by law, the Certificate or these Bylaws
directed or required to be exercised or done by the stockholders.
3.02 Qualification; Election; Term. At each annual meeting of stockholders,
directors shall be elected to hold office until the next annual meeting of
stockholders and until their successors are elected and qualified or until their
earlier resignation, death, or removal. No director need be a stockholder, a
resident of the State of Delaware, or a citizen of the United States. A majority
of the members of the Board of Directors of UICI shall qualify as "independent"
directors as and when required in accordance with the applicable provisions of
the Securities Exchange Act of 1934, as amended, and the rules promulgated
thereunder and the applicable rules of the New York Stock Exchange.
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AS ADOPTED APRIL 28, 2004 PAGE 3
3.03 Number. The initial Board of Directors shall consist of the five (5)
directors named in the Certificate. Thereafter, a change in the number of
directors that shall constitute the entire Board of Directors may be made by
resolution of the Board of Directors or in such other manner permitted or
required by law or the Certificate, but such number of Directors shall never be
less than one (1) director. Any directorship to be filled by reason of any
increase in the number of directors serving shall be filled by either the
affirmative vote of a majority of the directors of the Board of Directors, or by
election at an annual meeting of the stockholders or at a special meeting of the
stockholders called for that purpose as provided in these Bylaws and as may be
required by law or the Certificate. No decrease in the number of the directors
serving shall have the effect of shortening the term of any incumbent director.
3.04 Removal. At any meeting of stockholders called expressly for the purpose,
any director or the entire Board of Directors may be removed, with or without
cause, by the affirmative vote of the holders of a majority of shares then
entitled to vote for the election of such director or directors; provided,
however, that notice of intention to act upon such matter shall have been given
in the notice calling such meeting.
3.05 Vacancies. Any vacancy occurring in the Board of Directors (by death,
resignation, removal or otherwise) 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.
3.06 First Meeting. Each newly elected Board of Directors may hold its first
meeting for the purpose of organization and the transaction of business, if a
quorum is present, immediately after and at the same place as the annual meeting
of stockholders, and notice of such meeting shall not be necessary.
3.07 Regular Meetings. Regular meetings of the Board of Directors may be held
without notice at such times and places as may be designated from time to time
by resolution of the Board of Directors and communicated to all directors.
3.08 Special Meetings. A special meeting of the Board of Directors shall be held
whenever called by any two (2) or more directors at such time and place as such
directors shall designate in the notice of such special meeting. The directors
calling any special meeting shall cause notice of such special meeting to be
given to each director at least twenty-four (24) hours before such special
meeting. Neither the business to be transacted at, nor the purpose of, any
special meeting of the Board of Directors need be specified in the notice or
waiver of notice of any special meeting.
3.09 Quorum; Majority Vote. At all meetings of the Board of Directors, a
majority of the directors, fixed in the manner provided in these Bylaws, shall
constitute a quorum for the transaction of business. If a quorum is not present
at a meeting, a majority of the directors present may adjourn the meeting from
time to time, without notice other than an announcement at the meeting, until a
quorum is present. The vote of a majority of the directors present at a meeting
at which a quorum is in attendance shall be the act of the Board of Directors,
unless the vote of a different number is otherwise required by law, the
Certificate or these Bylaws. The directors present at a duly convened meeting
may continue to transact business until adjournment, notwithstanding the
withdrawal of a sufficient number of directors to leave less than a quorum.
3.10 Procedure; Minutes. At all meetings of the Board of Directors, business
shall be transacted in such order as the Board of Directors may determine from
time to time. The Board of Directors shall appoint at each meeting a person to
preside at the meeting and a person to act as secretary of the meeting. The
secretary of the meeting shall prepare minutes of the meeting, which shall be
delivered to the Secretary of the Company for placement in the minute book of
the Company.
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AS ADOPTED APRIL 28, 2004 PAGE 4
3.11 Presumption of Assent. A director of the Company who is present at any
meeting of the Board of Directors at which action on any matter is taken shall
be presumed to have assented to the action unless his dissent shall be entered
in the minutes of the meeting or unless he shall file his written dissent to
such action with the person acting as secretary of the meeting before the
adjournment thereof or shall forward any dissent by certified or registered mail
to the Secretary of the Company immediately after the adjournment of the
meeting. Such right to dissent shall not apply to a director who voted in favor
of such action.
3.12 Compensation. Directors, in their capacity as directors, may receive, by
resolution of the Board of Directors, a fixed sum and expenses of attendance, if
any, for attending meetings of the Board of Directors or a stated salary. No
director shall be precluded from serving the Company in any other capacity or
receiving compensation therefor.
3.13 Interested Directors. Any contract or other transaction between the Company
and any of its directors (or any corporation or firm in which any of its
directors is directly or indirectly interested) shall be valid for all purposes
notwithstanding the presence of such director at the meeting authorizing such
contract or transaction, or his participation in such meeting. The foregoing
shall, however, apply only if the interest of such director is known or
disclosed to the Board of Directors and it shall nevertheless authorize or
ratify such contract or transaction by vote of a majority of the directors
present, each such interested director to be counted in determining whether a
quorum is present but not in calculating the majority necessary to carry such
vote. This section shall not be construed to invalidate any contract or
transaction that would be valid in the absence of this Section 3.13.
ARTICLE IV
Committees
4.01 Designation. The Board of Directors may, by resolution adopted by a
majority of the entire Board of Directors at any time serving, designate
committees, which may include but not be limited to an Executive Committee, an
Executive Compensation Committee, an Audit Committee, a Nominating and
Governance Committee and such other committees as the Board of Directors may
deem advisable from time to time.
4.02 Number; Qualification; Term. Except as provided below with respect to the
Executive Compensation Committee, the Audit Committee and the Nominating and
Governance Committee, each committee shall consist of two or more directors
appointed by resolution adopted by a majority of the entire Board of Directors
at any time serving. The number of committee members may be increased or
decreased from time to time by resolution adopted by a majority of the entire
Board of Directors. Each committee member shall serve as such so long as he
remains and continues to be elected a director of the Company, or until his
earlier resignation, unless sooner removed as a committee member or as a
director. Notwithstanding the foregoing,
(a) The Audit Committee shall consist of three or more
directors as determined by the Board of Directors, each of whom shall
have no relationship to the Company that may interfere with the
exercise of his or her independence from management and the Company.
Members of the Audit Committee shall as and when required otherwise
meet the qualification standards established by the New York Stock
Exchange, as set forth in the Securities Exchange Act of 1934, as
amended and the rules and regulations promulgated thereunder, and as
established by any other regulatory body having jurisdiction over the
Company from time to time.
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AS ADOPTED APRIL 28, 2004 PAGE 5
(b) The Executive Compensation Committee shall consist of
three or more members as determined by the Board of Directors. Each
member of the Executive Compensation Committee shall as and when
required satisfy the independence requirements of the New York Stock
Exchange and, if deemed appropriate from time to time by the Board or
the Executive Compensation Committee, meet the definition of
"non-employee" director under Rule 16b-3 under the Securities Exchange
Act of 1934, as amended, and "outside" director" for purposes of
Section 162(m) of the Internal Revenue Code of 1986.
(c) The Nominating and Governance Committee shall consist of
three or more members as determined by the Board of Directors. Each
member of the Nominating and Governance Committee shall as and when
required satisfy the independence requirements of the New York Stock
Exchange.
4.03 Authority. The Executive Committee, unless expressly restricted in the
resolution adopted by a majority of the entire Board of Directors establishing
the Executive Committee, shall have and may exercise all of the authority of the
Board of Directors in the management of the business and affairs of the Company;
provided, however, that the Executive Committee shall not have authority of the
full Board of Directors in reference to (a) amending the Certificate, (b)
approving a plan of merger or consolidation, (c) recommending to the
stockholders the sale, lease or exchange of all or substantially all of the
property and assets of the Company otherwise than in the usual and regular
course of its business, (d) recommending to the stockholders a voluntary
dissolution of the Company or a revocation thereof, (e) amending, altering or
repealing these Bylaws or adopting new bylaws, (f) filling vacancies in or
removing members of the Board of Directors or of any committee, (g) electing or
removing officers or committee members, (h) fixing the compensation of any
committee member, or (i) altering or repealing any resolution of the Board of
Directors which by its terms provides that it shall not be amendable or
repealable. Each other committee of the Board shall operate under and be
governed by a written charter, which charter shall be in compliance with, and
delineate such duties and responsibilities as are prescribed by, all applicable
state and federal securities and other laws and applicable requirements of any
securities exchange or trading market upon which the securities of the Company
may be traded.
4.04 Committee Changes. The Board of Directors shall have the power at any time
to remove committee members and to fill vacancies in, to change the membership
of, and to discharge any committee. The removal of a committee member shall be
without prejudice to the contract rights, if any, of the person so removed.
4.05 Regular Meetings. Regular meetings of any committee may be held without
notice at such times and places as may be designated from time to time by
resolution of the committee and communicated to all committee members.
4.06 Special Meetings. A special meeting of any committee may be held whenever
called by any committee member at such time and place as such committee member
shall designate in the notice of such special meeting. The committee member
calling any special meeting shall cause notice of such special meeting to be
given to each committee member at least twelve (12) hours before such special
meeting. Neither the business to be transacted at, nor the purpose of, any
special meeting of any committee need be specified in the notice or waiver of
notice of any special meeting.
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AS ADOPTED APRIL 28, 2004 PAGE 6
4.07 Quorum; Majority Vote. At all meetings of any committee, a majority of the
number of committee members designated by the Board of Directors shall
constitute a quorum for the transaction of business. If a quorum is not present
at a meeting of any committee, a majority of the committee members present may
adjourn the meeting from time to time, without notice other than an announcement
at the meeting, until a quorum is present. The vote of a majority of the
committee members present at any meeting at which a quorum is in attendance
shall be the act of the committee, unless the vote of a different number is
otherwise required by law, the Certificate or these Bylaws. The committee
members present at a duly convened meeting may continue to transact business
until adjournment, notwithstanding the withdrawal of a sufficient number of
committee members to leave less than a quorum.
4.08 Minutes. Each committee shall cause minutes of its proceedings to be
prepared and shall report the same to the Board of Directors upon the request of
the Board of Directors. The minutes of the proceedings of each committee shall
be delivered to the Secretary of the Company for placement in the minute book of
the Company.
4.09 Compensation. Committee members may, by resolution of the Board of
Directors, be allowed a fixed sum and expenses of attendance, if any, for
attending any committee meetings or a stated salary.
4.10 Responsibility. The designation of any committee and the delegation of
authority to it shall not operate to relieve the Board of Directors or any
director of any responsibility imposed upon it or such director by law. The
Board of Directors may modify, alter, revise and/or approve any actions taken by
any committee; provided, however, that no rights or acts of third parties shall
be affected by any such modification, alteration or revision.
ARTICLE V
General Provisions Relating to Meetings
5.01 Notice. Whenever by law, the Certificate, or these Bylaws notice is
required to be given to any stockholder, director or committee member and no
provision is made as to how such notice shall be given, it shall be construed to
mean that notice may be given either (a) in person, (b) in writing, by mail, (c)
except in the case of a stockholder, by telegram, telex, cable, telecopy, or
similar means, or (d) by any other method permitted by law. Any notice required
or permitted to be given hereunder (other than personal notice) shall be
addressed to such stockholder, director, or committee member at his address as
it appears on the books of the Company or, in the case of a stockholder, on the
stock transfer records of the Company or at such other place as such
stockholder, director, or committee member is known to be at the time notice is
mailed or transmitted. Any notice required or permitted to be given by mail
shall be deemed to be delivered and given at the time when the same is deposited
in the United States mail, postage prepaid. Any notice required or permitted to
be given by telegram, telex, cable, telecopier, or similar means shall be deemed
to be delivered and given at the time transmitted.
5.02 Waiver of Notice. Whenever by law, the Certificate, or these Bylaws any
notice is required to be given to any stockholder, director, or committee member
of the Company, a waiver thereof in writing signed by the person or persons
entitled to such notice, whether before or after the time such notice should
have been given, shall be equivalent to the giving of such notice. 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.
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AS ADOPTED APRIL 28, 2004 PAGE 7
5.03 Telephone and Similar Meetings. Stockholders, directors or committee
members may participate in and hold a meeting by means of a conference telephone
or similar communications equipment by means of which persons participating in
the meeting can hear each other. Participation in such a meeting shall
constitute presence in person at such meeting, except where a person
participates in the 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.
5.04 Action Without Meeting. Any action which may be taken, or is required by
law, the Certificate or these Bylaws to be taken, at a meeting of stockholders,
directors or committee members may be taken without a meeting if a consent in
writing, setting forth the action so taken, shall be signed by all of the
stockholders, directors, or committee members, as the case may be, entitled to
vote with respect to the subject matter thereof, and such consent shall have the
same force and effect, as of the date stated therein, as a unanimous vote of
such stockholders, directors, or committee members, as the case may be, and may
be stated as such in any document filed with the Secretary of State of Delaware
or in any certificate or other document delivered to any person. The consent may
be in one or more counterparts so long as each stockholder, director, or
committee member signs one of the counterparts. The signed consent shall be
placed in the minute book of the Company.
ARTICLE VI
Officers and Other Agents
6.01 Number; Titles; Election; Term. The Company shall have a Chairman of the
Board, a President and Chief Executive Officer, one or more Vice Presidents
(and, in the case of each Vice President, with such descriptive title, if any,
as the Board of Directors shall determine), a Secretary, a Treasurer, and such
other officers and agents as the Board of Directors may deem desirable. The
Company may (but shall not be required to) have a Lead Independent Director and
a Vice Chairman of the Board. The Board of Directors shall elect a Chairman of
the Board, a President and Chief Executive Officer, Vice President, Treasurer,
and Secretary at its first meeting at which a quorum shall be present after the
annual meeting of stockholders or whenever a vacancy exists. The Board of
Directors then, or from time to time, may also elect or appoint one or more
other officers or agents as it shall deem advisable. Each officer and agent
shall hold office at the discretion of the Board of Directors. Any two or more
offices may be held by the same person. No officer or agent need be a
stockholder, a director, a resident of the State of Delaware, or a citizen of
the United States.
6.02 Removal. Any officer or agent elected or appointed by the Board of
Directors may be removed by the Board of Directors at any time, with or without
cause, but such removal shall be without prejudice to the contract rights, if
any, of the person so removed. Election or appointment of an officer or agent
shall not of itself create contract rights.
6.03 Vacancies. Any vacancy occurring in any office of the Company (by death,
resignation, removal, or otherwise) may be filled by the Board of Directors.
6.04 Authority. Officers and agents shall have such authority and perform such
duties in the management of the Company as are provided in these Bylaws or as
may be determined by resolution of the Board of Directors, or an executive
committee thereof, not inconsistent with these Bylaws.
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AS ADOPTED APRIL 28, 2004 PAGE 8
6.05 Compensation. The compensation, if any, of the President and Chief
Executive Officer of the Company shall be fixed, increased or decreased by the
Board of Directors of the Company, subject to review and recommendation of the
Executive Compensation Committee, and the compensation, if any of other officers
and agents shall be fixed, increased, or decreased from time to time by the
President and Chief Executive Officer or Vice President; provided, however, that
the Board of Directors, or the Executive Committee thereof, may by resolution
withdraw the authority of the President and Chief Executive Officer and/or the
Vice President to fix, increase, or decrease officers' or agents' compensation
and retain such authority for itself or delegate such authority to any other
officer or officers of the Company.
6.06 Employment and other Contracts. The Board of Directors may authorize any
officer or officers or agent or agents to enter into any contract or execute and
deliver any instrument in the name or on behalf of the Company, and such
authority may be general or confined to specific instances. The Board of
Directors may, when it believes the interests of the Company will best be served
thereby, authorize executive employment contracts which will have terms no
longer than ten (10) years (both which may be renewed or extended) and contain
such other terms and conditions as the Board of Directors may deem appropriate.
Nothing herein shall limit the authority of the Board of Directors to authorize
employment contracts for shorter terms.
6.07 Chairman of the Board. The Chairman of the Board (a) shall preside at all
meetings of the Board of Directors of the Company, (b) shall coordinate with and
provide input to the Independent Lead Director on preparation of agendas for all
meetings of the Board of Directors of the Company, and (c) shall have such other
authority and powers as the Board of Directors may from time to time prescribe.
6.08 Lead Independent Director. The Board of Directors may from time to time
designate a director to serve as Lead Independent Director, who shall be an
"independent director" in accordance with the Securities Exchange Act of 1934,
as amended, and the rules promulgated thereunder and the applicable rules of the
New York Stock Exchange. The Lead Independent Director (a) shall preside over,
coordinate and develop the agenda for executive sessions of the independent
directors and sessions of the non-management directors, as and when required in
accordance with the applicable provisions of the Securities Exchange Act of
1934, as amended, and the rules promulgated thereunder and the applicable rules
of the New York Stock Exchange; (b) shall preside at all meetings of the Board
of Directors of the Company in the absence of the Chairman; (c) shall serve as a
liaison between the Chairman of the Board and the independent directors; (d)
shall serve as a liaison between the Board of Directors and management; (e)
shall approve information sent to the Board of Directors, (f) shall, together
and in consultation with the Chairman, coordinate, develop and approve the
agendas for all meetings of the Board of Directors; (g) shall approve meeting
schedules to assure that there is sufficient time for discussion of all items;
and (h) shall have such other authority and powers as the Board of Directors may
from time to time prescribe.
6.09 Vice Chairman of the Board. The Board of Directors may from time to time
designate a director to serve as Vice Chairman. The Vice Chairman of the Board
shall preside at all meetings of the Board of Directors of the Company in the
absence of the Chairman and the Lead Independent Director, and shall have such
other authority and powers as the Board of Directors may from time to time
prescribe.
AMENDED AND RESTATED BYLAWS
AS ADOPTED APRIL 28, 2004 PAGE 9
6.10 President and Chief Executive Officer. The President and Chief Executive
Officer shall be the chief executive officer of the Company and, subject to the
supervision of the Board of Directors, shall have charge of the general
management of the business and property of the Company in the ordinary course of
its business with all such powers with respect to such business and property as
may be reasonably incident to such responsibilities, including, but not limited
to, the power to employ, discharge, or suspend employees or agents of the
Company, to fix the compensation of other officers (unless such power has been
withdrawn by resolution of the Board of Directors), to fix the compensation of
employees and agents, and to suspend, with or without cause, any officer of the
Company pending final action by the Board of Directors with respect to continued
suspension, removal, or reinstatement of such officer. The President and Chief
Executive Officer shall see that all orders and resolutions of the Board of
Directors are carried into effect and shall perform such other duties and have
such other authority and powers as the Board of Directors may from time to time
prescribe.
6.11 Vice President. Each Vice President shall have such powers and duties as
may be prescribed from time to time by the Board of Directors, or any executive
committee thereof, or as may be delegated from time to time by the Chairman of
the Board or President and Chief Executive Officer and (in the order as
designated by the Board of Directors, or any executive committee thereof, or in
the absence of such designation, as determined by the length of time each has
held the office of Vice President continuously) shall exercise the powers of the
President during such officer's absence or inability to act.
6.12 Treasurer. The Treasurer shall have custody of the Company's funds and
securities, shall keep full and accurate accounts of receipts and disbursements,
and shall deposit all moneys and valuable effects in the name and to the credit
of the Company in such depository or depositories as may be designated by the
Board of Directors or any executive committee thereof. The Treasurer shall also
have the power to endorse for deposit, collection or otherwise, all checks,
drafts, notes, bills of exchange, and other commercial paper payable to the
Company and to give proper receipts and discharges for all payments to the
Company. The Treasurer shall perform such other duties as may be prescribed from
time to time by the Board of Directors, or any executive committee thereof, or
as may be delegated from time to time by the President and Chief Executive
Officer or any Vice President.
6.13 Assistant Treasurer. Each Assistant Treasurer shall perform such duties as
may be prescribed from time to time by the Board of Directors, or any executive
committee thereof, or as may be delegated from time to time by the Treasurer,
the President and Chief Executive Officer, or any Vice President. The Assistant
Treasurers (in the order as designated by the Board of Directors, or any
executive committee thereof, or in the absence of such designation, as
determined by the length of time each has held the office of Assistant Treasurer
continuously) shall exercise the powers of the Treasurer during such officer's
absence or inability to act.
6.14 Secretary. The Secretary shall maintain minutes of all meetings of the
Board of Directors, of any committee, and of the stockholders or consents in
lieu of such minutes in the Company's minute book, and shall cause notice of
such meetings to be given when requested by any person authorized to call such
meetings. With respect to any contract, deed, deed of trust, mortgage, or other
instrument executed by the Company through its duly authorized officer or
officers, the attestation to such execution by the Secretary shall not be
necessary to constitute such contract, deed of trust, mortgage, or other
instrument a valid and binding obligation against the Company unless the
resolution, if any, of the Board of Directors authorizing such execution
expressly states that such attestation is necessary. The Secretary shall have
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AS ADOPTED APRIL 28, 2004 PAGE 10
charge of the certificate books, stock transfer books, and stock papers as the
Board of Directors, or any executive committee thereof, may direct, all of which
shall at all reasonable times be open to inspection by any director. The
Secretary shall perform such other duties as may be prescribed from time to time
by the Board of Directors, or any executive committee thereof, or as may be
delegated from time to time by the President and Chief Executive Officer or any
Vice President.
6.15 Assistant Secretaries. Each Assistant Secretary shall perform such duties
as may be prescribed from time to time by the Board of Directors or as may be
delegated from time to time by the Secretary, the President and Chief Executive
Officer or any Vice President. The Assistant Secretaries (in the order
designated by the Board of Directors, or an executive committee thereof, or, in
the absence of such designation, as determined by the length of time each has
held the office of Assistant Secretary continuously) shall exercise the powers
of the Secretary during such officer's absence or inability to act.
ARTICLE VII
Certificates and Stockholders
7.01 Stock certificates; uncertificated shares. The shares of this Company shall
be represented by certificates, provided, however, that the Board may by
resolution authorize the issuance of some or all of any or all classes or series
of its stock without certificates. Notwithstanding such authorization by the
Board of Directors, every holder of uncertificated shares is entitled to receive
a certificate upon request to the Company or its transfer agent. The
authorization granted hereunder shall not affect shares already represented by
certificates until such certificates are surrendered to the Company or its
transfer agent. Within a reasonable time after the issuance or transfer of
shares without certificates, the Company or its transfer agent shall send the
shareholder a written statement of the information required on certificates.
Each such certificate shall be signed by the Chairman or Vice Chairman of the
Board of Directors, the President or any Vice President, and by the Secretary or
an Assistant Secretary, or any other officer, and may be sealed with the seal of
the Company or a facsimile thereof. In case any officer who has signed or whose
facsimile signature has been placed on such certificate shall have ceased to be
an officer before such certificate is issued, it may be issued by the Company
with the same effect as if such person were an officer at the time of its issue.
7.02 Lost, Stolen, or Destroyed Certificates. The Company shall issue a new
certificate in place of any certificate for shares previously issued if the
registered owner of the certificate, or his legal representative:
(a) Claim. Makes proof by affidavit, in form and substance satisfactory
to the Board of Directors, that a previously issued certificate for shares has
been lost, destroyed, or stolen;
(b) Timely Request. Requests the issuance of a new certificate before
the Company has notice that the certificate has been acquired by a purchaser for
value in good faith and without notice of an adverse claim;
(c) Bond. If requested by the Board of Directors, or any executive
committee thereof, delivers to the Company a bond, in form and substance
satisfactory to the Board of Directors, or any executive committee thereof, with
such surety or sureties and with fixed or open penalty, as the Board of
Directors, or any executive committee thereof, may direct, in its discretion, to
indemnify the Company (and its transfer agent and registrar, if any) against any
claim that may be made on account of the alleged loss, destruction, or theft of
the certificate;
AMENDED AND RESTATED BYLAWS
AS ADOPTED APRIL 28, 2004 PAGE 11
(d) Advertisement. If requested by the Board of Directors, or any
executive committee thereof, advertises the loss, theft or destruction of such
certificate in such manner as the Board of Directors, or any executive committee
thereof, may specify; and
(e) Other Requirements. Satisfies any other reasonable requirements
imposed by the Board of Directors.
When a certificate has been lost, destroyed, or stolen, and the stockholder of
record fails to notify the Company within a reasonable time after he has notice
of it, and the Company registers a transfer of the shares represented by the
certificate before receiving such notification, the stockholder of record is
precluded from making any claim against the Company or any transfer agent or
registrar for the transfer or for a new certificate.
7.03 Transfer of Shares. Shares of stock of the Company shall be transferable
only on the books of the Company by the stockholders thereof in person or by
their duly authorized attorneys or legal representatives. Upon surrender to the
Company or the transfer agent of the Company of a certificate representing
shares duly endorsed or accompanied by proper evidence of succession,
assignment, or authority to transfer, the Company or its transfer agent shall
issue a new certificate, and record the transaction upon its books.
7.04 Registered Stockholders. The Company shall be entitled to treat the
stockholder of record as the stockholder in fact of any shares and, accordingly,
shall not be bound to recognize any equitable or other claim to or interest in
such shares on part of any other person, whether or not it shall have actual or
other notice thereof, except as otherwise provided by law.
7.05 Regulations. The Board of Directors may make such rules and regulations as
it may deem expedient, not inconsistent with these Amended and Restated By-Laws,
concerning the issue, transfer and registration of certificates for shares of
the stock of this Company. The Board of Directors may appoint, or authorize any
officer or officers to appoint, one or more transfer clerks or one or more
transfer agents and one or more registrants, and may require all certificates
for stock to bear the original signature or signatures of any of such persons.
ARTICLE VIII
Miscellaneous Provisions
8.01 Dividends and Reserves. Subject to provisions of law and the Certificate,
dividends may be declared by the Board of Directors at any regular or special
meeting and may be paid in cash, in property or in shares of the Company. Such
declaration and payment shall be at the discretion of the Board of Directors.
There may be created by resolution of the Board of Directors out of the earned
surplus of the Company such reserve or reserves as the Board of Directors from
time to time thinks proper to provide for contingencies, equalize dividends or
repair or maintain any property of the Company, or for such other purpose as the
Board of Directors thinks beneficial to the Company, and the Board of Directors
may modify or abolish any such reserve in the manner in which it was created.
8.02 Fiscal Year. The fiscal year of the Company shall be fixed by the Board of
Directors; provided, however, that if such fiscal year is not fixed by the Board
of Directors it shall be the calendar year.
8.03 Seal. The seal, if any, of the Company shall be in such form as may be
approved from time to time by the Board of Directors, or any
AMENDED AND RESTATED BYLAWS
AS ADOPTED APRIL 28, 2004 PAGE 12
executive committee thereof. If the Board of Directors, or any executive
committee thereof, approves a seal, the affixation of such seal shall not be
required to create a valid and binding obligation against the Company.
8.04 Resignation. A director, committee member, officer, or agent may resign by
so stating at any meeting of the Board of Directors or by giving written notice
to the Company. The effective time of such resignation shall be any time
specified in the statement made at the Board of Directors' meeting or in the
written notice given to the Company, but in no event may the effective time of
such resignation be prior to the time such statement is made or such notice is
given. If no effective time is specified in the resignation, the resignation
shall be effective immediately. Unless a resignation specified otherwise, it is
effective without being accepted.
8.05 Securities of Other Corporations. The Chairman of the Board, the President
or any Vice President of the Company or any other person authorized by
resolution of the Board of Directors, or an executive committee thereof, shall
have the power and authority to transfer, endorse for transfer, vote, consent,
or take any other action with respect to any securities of another issuer which
may be held or owned by the Company and to make, execute, and deliver any
waiver, proxy, or consent with respect to any such securities.
8.06 Amendment. The power to alter, amend, or repeal these Bylaws or adopt new
bylaws is vested in the Board of Directors, subject to repeal or change by
action of the stockholders.
8.07 Invalid Provisions. If any provision of these Bylaws is held to be illegal,
invalid, or unenforceable under present or future laws, such provision shall be
fully severable; these Bylaws shall be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part hereof;
and the remaining provisions hereof shall remain in full force and effect and
shall not be affected by the illegal, invalid, or unenforceable provision or by
its severance herefrom. Furthermore, in lieu of such illegal, invalid, or
unenforceable provision, there shall be added automatically as a part of these
Bylaws a provision as similar in terms to such illegal, invalid, or
unenforceable provision as may be possible and be legal, valid, and enforceable.
8.08 Indemnification. (a) The Company shall indemnify, to the extent provided in
paragraphs (b), (c) or (d) of this Section 8.08: (1) any person who is or was a
director, officer, employee or agent of the Company; and (2) any person who is
or was serving at the request of the Company as a director, officer, employee,
member or agent of another corporation, partnership, limited liability company,
joint venture, trust, banking institution or other enterprise.
(b) In case of a suit by or in the right of the Company against a person named
in paragraph (a) of this Section 8.08 by reason of his holding a position
specified in such paragraph (a), the Company shall indemnify him for expenses
(including attorneys' fees but excluding amounts paid in settlement) actually
and reasonably incurred by him in connection with the defense or settlement of
the suit, if: (1) he is successful on the merits or otherwise; or (2) he acted
in good faith in the transaction which is the subject of the suit, and in a
manner he reasonably believed to be in, or not opposed to, the best interests of
the Company; he shall not, however, be indemnified in respect of any claim,
issue or matter as to which he has been adjudged liable for negligence or
misconduct in the performance of his duty to the Company unless (and only to the
extent that) the court in which the suit was brought shall determine, upon
application, that despite the adjudication but in view of all circumstances he
is fairly and reasonably entitled to indemnity for such expenses as the court
shall deem proper.
AMENDED AND RESTATED BYLAWS
AS ADOPTED APRIL 28, 2004 PAGE 13
(c) In case of a suit, action or proceeding (whether civil, criminal,
administrative or investigative, and whether threatened, pending, or completed),
other than a suit by or in the right of the Company, together hereinafter
referred to as a "nonderivative suit", against a person named in paragraph (a)
of this Section 8.08 by reason of his holding a position specified in such
paragraph (a), the Company shall indemnify him against expenses (including
attorneys' fees), judgments, fines, penalties and amounts paid in settlement
actually and reasonably incurred by the person in connection with the defense or
settlement of such action or suit if (1) he is successful on the merits or
otherwise; or (2) he acted in good faith in the transaction which is the subject
of the nonderivative suit, and in a manner he reasonably believed to be in, or
not opposed to, the best interests of the Company and, with respect to any
criminal action or proceeding, he had no reason to believe his conduct was
unlawful. The termination of a nonderivative suit by judgment, order, settlement
conviction, or upon a plea of nolo contendre or its equivalent shall not, of
itself, create a presumption that the person failed to satisfy the standard of
paragraph (c)(2) of this Section 8.08.
(d) A determination that the standard of paragraph (b) or (c) of this Section
8.08 has been satisfied may be made by a court, or by: (1) a majority of the
directors of the Company (whether or not a quorum) who were not parties to the
action, suit or proceeding; (2) independent legal counsel in a written opinion;
or (3) the stockholders of the Company.
(e) Anyone making a determination under paragraph (d) of this Section 8.08 may
determine that a person has met the standard as to some matters but not as to
others and may reasonably prorate amounts to be indemnified.
(f) The Company may pay in advance any expenses (including attorneys' fees)
which may become subject to indemnification under paragraphs (a)-(e) of this
Section 8.08 if: (1) The Board of Directors authorizes the specific payment; and
(2) the person receiving the payment undertakes in writing to repay unless it is
ultimately determined that he is entitled to indemnification by the Company
under paragraphs (a)-(e) of this Section 8.08.
(g) The indemnification provided by paragraphs (a)-(e) of this Section 8.08
shall not be exclusive of any other rights to which a person may be entitled by
law, agreement, vote of stockholders or directors, or otherwise.
(h) The indemnification and advance payment provided by paragraphs (a)-(f) of
this Section 8.08 shall continue as to a person who has ceased to hold a
position named in paragraph (a) of this Section 8.08 and shall inure to his
heirs, executors and administrators.
(i) The Company may purchase and maintain insurance on behalf of any person who
holds or who has held any position named in paragraph (a) against any liability
incurred by him or in any such position, or arising out of his status as such,
whether or not the Company would have power to indemnify him against such
liability under paragraphs (a)-(f) of this Section 8.08.
(j) Indemnification payments, advance payments and insurance payments under
paragraphs (a)-(i) of this Section 8.08 shall be reported in writing to the
stockholders of the Company with the next notice of annual meeting, or within
six months, whichever is sooner.
8.09 Table of Contents; Headings. The Table of Contents and headings used in
these Bylaws have been inserted for administrative convenience only and do not
constitute matter to be construed or interpreted in connection with these
Bylaws.
AMENDED AND RESTATED BYLAWS
AS ADOPTED APRIL 28, 2004 PAGE 14
The undersigned Secretary of the Company hereby certifies that the
foregoing Restated Bylaws have been duly adopted by the Board of Directors of
the Company; that all amendments heretofore adopted are incorporated herein;
that the Bylaws have not subsequently been amended or rescinded; that said
Bylaws are in full force and effect as of the date hereof.
Date: April 28, 2004
/s/ Peggy G. Simpson
-----------------------------------------
Peggy G. Simpson, Secretary
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AS ADOPTED APRIL 28, 2004 PAGE 15