EXHIBIT 3.14
BYLAWS
OF
TRINITY TANK CAR, INC.
Dated: October 31, 2001
BYLAWS OF
TRINITY TANK CAR, INC.
TABLE OF CONTENTS
Page
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ARTICLE I MEETINGS OF STOCKHOLDERS .............................................................................. 1
Section 1.1 Annual Meetings ....................................................................................... 1
Section 1.2 Special Meetings ...................................................................................... 1
Section 1.3 Notice of Meetings .................................................................................... 1
Section 1.4 Quorum ................................................................................................ 1
Section 1.5 Adjournments .......................................................................................... 1
Section 1.6 Voting ................................................................................................ 1
Section 1.7 Proxies ............................................................................................... 2
Section 1.8 List of Stockholders Entitled to Vote ................................................................. 2
Section 1.9 Action by Consent ..................................................................................... 2
ARTICLE II BOARD OF DIRECTORS .................................................................................... 2
Section 2.1 General................................................................................................ 2
Section 2.2 Number ................................................................................................ 3
Section 2.3 Election and Term of Office ........................................................................... 3
Section 2.4 Vacancies and Additional Directorships ................................................................ 3
Section 2.5 Meetings .............................................................................................. 3
Section 2.6 Notice of Meetings .................................................................................... 3
Section 2.7 Quorum, Manner of Acting and Presence ................................................................. 3
Section 2.8 Resignation of Directors .............................................................................. 3
Section 2.9 Removal of Directors .................................................................................. 4
Section 2.10 Action by Consent ..................................................................................... 4
ARTICLE III COMMITTEES OF THE BOARD ............................................................................... 4
Section 3.1 Designation, Power, Alternative Members
and Term of Office .................................................................................... 4
Section 3.2 Meetings, Notices and Records ......................................................................... 4
Section 3.3 Quorum, Manner of Acting and Presence.................................................................. 5
Section 3.4 Resignations........................................................................................... 5
Section 3.5 Removal................................................................................................ 5
Section 3.6 Vacancies.............................................................................................. 5
Section 3.7 Action by Consent ..................................................................................... 5
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ARTICLE IV OFFICERS .............................................................................................. 5
Section 4.1 Officers............................................................................................... 5
Section 4.2 Election, Term of Office and Qualifications ........................................................... 5
Section 4.3 Resignations .......................................................................................... 5
Section 4.4 Removal ............................................................................................... 6
Section 4.5 Vacancies.............................................................................................. 6
Section 4.6 Chairman of the Board ................................................................................. 6
Section 4.7 The President ......................................................................................... 6
Section 4.8 Vice President ........................................................................................ 6
Section 4.9 The Treasurer ......................................................................................... 7
Section 4.10 The Secretary ......................................................................................... 7
Section 4.11 Assistant Secretaries, Assistant Treasurers and Subordinate Officers .................................. 7
ARTICLE V INDEBTEDNESS OF THE CORPORATION AND DEPOSIT OF CORPORATE FUNDS ........................................ 8
Section 5.1 Borrowing ............................................................................................. 8
Section 5.2 Deposits .............................................................................................. 8
Section 5.3 Checks, Drafts, Etc. .................................................................................. 8
ARTICLE VI STOCK ................................................................................................. 8
Section 6.1 Certificates........................................................................................... 8
Lost, Stolen or Destroyed Stock
Section 6.2 Certificates; Issuance of New Certificates ............................................................ 8
ARTICLE VII MISCELLANEOUS PROVISIONS .............................................................................. 9
Section 7.1 Offices ............................................................................................... 9
Section 7.2 Fiscal Year ........................................................................................... 9
Section 7.3 Corporate Seal ........................................................................................ 9
Section 7.4 Voting of Stock ....................................................................................... 9
Section 7.5 Record Dates .......................................................................................... 9
ARTICLE VIII INDEMNIFICATION AND LIABILITY ......................................................................... 10
Section 8.1 Actions, Suits or Proceedings Other Than by or in the Right of the Corporation ........................ 10
Section 8.2 Actions or Suits by or in the Right of the Corporation ................................................ 10
Section 8.3 Indemnification for Costs, Charges and Expenses of Successful Party ................................... 10
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Section 8.4 Determination of Right to Indemnification ............................................................. 11
Section 8.5 Advance of Costs, Charges and Expenses ................................................................ 11
Section 8.6 Procedure for Indemnification ......................................................................... 11
Section 8.7 Other Rights; Continuation of Right to Indemnification ................................................ 11
Section 8.8 Insurance ..................................................... ....................................... 12
Section 8.9 Liability of Directors ................................................................................ 12
Section 8.10 Savings Clause ........................................................................................ 12
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TRINITY TANK CAR, INC.
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BYLAWS
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I
MEETINGS OF STOCKHOLDERS
.1 Annual Meetings. The annual meeting of the stockholders for the
election of directors and for the transaction of such other business as properly
may come before such meeting shall be held at 9:30 o'clock A.M. on the third
Wednesday in July of each year, commencing in 2000, at the principal office of
the company in Dallas, Texas, or at such other time, date or place, within or
without the State of Delaware, as may be designated by the Board of Directors
from time to time.
.2 Special Meetings. Special meetings of the stockholders for any
proper purpose or purposes may be called at any time by the Board of Directors,
the Chairman of the Board or the President, to be held on such date, and at such
time and place, within or without the State of Delaware, as the caller shall
direct.
.3 Notice of Meetings. Written notice, signed by the Chairman of the
Board, the President, any Vice President, the Secretary or an Assistant
Secretary, of every meeting of stockholders stating the date and time when, and
the place where, it is to be held shall be delivered personally or mailed to
each stockholder entitled to vote at such meeting not less than ten nor more
than sixty days before the meeting, except as otherwise provided by law. The
purpose or purposes for which the meeting is called may in the case of an annual
meeting, and shall in the case of a special meeting, also be stated. If mailed,
such notice shall be deemed to be given when deposited in the mail, postage
prepaid, directed to a stockholder at such stockholder's address as it shall
appear on the records of the Corporation, or at such other address as such
stockholder may have furnished, in writing, to the Secretary for such purpose.
When a meeting is adjourned to another time or place, notice need not
be given of the adjourned meeting if the time and place thereof are announced at
the meeting at which the adjournment is taken.
.4 Quorum. The presence at any meeting, in person or by proxy, of the
holders of record of a majority of the shares then issued and outstanding and
entitled to vote at such meeting shall be necessary and sufficient to constitute
a quorum for the transaction of business, except as otherwise provided by law,
the Certificate of Incorporation or these Bylaws.
.5 Adjournments. In the absence of a quorum, a majority in interest of
the stockholders entitled to vote, present in person or by proxy, or, if no
stockholder entitled to vote is present in person or by proxy, any officer
entitled to preside at or act as secretary of such meeting, may adjourn the
meeting from time to time until a quorum shall be present.
.6 Voting. At each meeting of stockholders, except as otherwise
provided by law or the Certificate of Incorporation, every holder of record of
stock entitled to vote shall be entitled to one vote in person or by proxy for
each share of such stock outstanding in his name on the records of the
Corporation.
Directors shall be chosen by a plurality of the votes cast at the
election by the holders of the class
of stock entitled to vote for the election of directors, and, except as
otherwise provided by law, the Certificate of Incorporation or these Bylaws, all
other questions shall be determined by a majority of the votes cast on such
question, provided that the Board of Directors may require a larger vote upon
any such question.
.7 Proxies. Any stockholder entitled to vote may vote by proxy,
provided that the instrument authorizing such proxy to act shall have been
executed in writing (which shall include telegraphing or cabling) by the
stockholder himself or by such stockholder's duly authorized attorney, but no
proxy shall be voted on after three years from its date, unless the proxy
provides for a longer period.
.8 List of Stockholders Entitled to Vote. The Secretary of the
Corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also 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. The stock ledger shall be the only evidence as to who are the
stockholders entitled to examine the stock ledger, the list of stockholders or
the books of the Corporation, or to vote in person or by proxy at any meeting of
stockholders.
.9 Action by Consent. Any action required or permitted to be taken at
any annual or special meeting of stockholders may be taken without a meeting,
without prior notice and without a vote, if a written consent or consents
thereto setting forth such action shall be signed by the holders of record of
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or to take such action at a meeting at which all shares
entitled to vote thereon were present and voted, and shall be delivered to the
Corporation by delivery to its registered office in the State of Delaware, its
principal place of business, or an officer or agent of the Corporation having
custody of the book in which proceedings of meetings of stockholders are
recorded. Delivery made to the Corporation's registered office shall be by hand
or by certified or registered mail, return receipt requested.
Every written consent shall bear the date of signature of each
stockholder who signs the consent and no written consent shall be effective to
take the corporate action referred to therein unless, within sixty days of the
earliest dated consent delivered to the Corporation, written consents signed by
a sufficient number of holders to take action are delivered to the Corporation
at such places required by this Section.
Prompt notice of the taking of such action without a meeting by less
than unanimous written consent shall be given to those stockholders who have not
consented in writing.
II
BOARD OF DIRECTORS
.1 General. The business of the Corporation shall be managed by its
Board of Directors which may exercise all powers of the Corporation and do all
lawful acts and things as are not by law, the Certificate of Incorporation or
these Bylaws directed or required to be exercised or done by the stockholders.
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.2 Number. The number of directors which shall constitute the Board of
Directors shall be fixed from time to time by resolution of the Board of
Directors. The initial Board of Directors and subsequent Boards of Directors
shall consist of three directors until changed as herein provided.
.3 Election and Term of Office. Directors shall be elected at the
annual meeting of the stockholders, except as provided in Section 2.4. Directors
(whether elected at an annual meeting or to fill a vacancy or otherwise) shall
continue in office until the next annual election and until their successors
shall have been elected and qualified or until their earlier death, resignation
or removal in the manner hereinafter provided.
.4 Vacancies and Additional Directorships. Vacancies in the Board of
Directors, whether by reason of death, resignation or otherwise, and newly
created directorships resulting from any increase in the authorized number of
directors shall be filled by a majority of the directors then in office,
although less than a quorum, or by a sole remaining director. In the event of
the resignation of directors effective at a future date, such vacancies may be
filled by a majority of the directors then in office, including those who have
resigned, effective on such future date.
.5 Meetings. The Board of Directors by resolution may provide for the
holding of regular meetings and may fix the times and places, either within or
without the State of Delaware, at which such meetings shall be held.
Special meetings of the Board shall be held upon the call of the
Chairman of the Board, the President or any two directors.
.6 Notice of Meetings. Notice need not be given of regular meetings of
the Board.
Except as otherwise provided by law, notice of each special meeting
shall be mailed to all directors, addressed to their residences or usual places
of business, at least two days before the day of the meeting, or shall be sent
to them at such places by telegram, radio or cable, or telephoned or delivered
to them personally, not later than the day before the date on which the special
meeting is to be held. Such notice shall state the time and place of such
meeting, but, unless otherwise required by law, the Certificate of Incorporation
or these Bylaws, need not state the purpose thereof.
Notice of any meeting need not be given to a director who shall attend
such meeting in person or who shall waive notice thereof, either before or after
such meeting, in a signed writing.
.7 Quorum, Manner of Acting and Presence. At each meeting of the Board
of Directors the presence of a majority of the total number of directors then
holding office shall be necessary and sufficient to constitute a quorum for the
transaction of business. In the absence of a quorum, a majority of directors
present at the time and place of any meeting may adjourn the meeting from time
to time until a quorum shall be present and the meeting may be held and
adjourned without further notice or waiver. A majority of directors present at
any meeting at which a quorum is present may decide any question brought before
such meeting, except as otherwise provided by law, the Certificate of
Incorporation or these Bylaws.
Members of the Board of Directors may participate in a meeting by means
of conference telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other and such
participation shall constitute presence in person at such meeting.
.8 Resignation of Directors. Any director may resign at any time by
giving written notice of such resignation to the Board of Directors, the
Chairman of the Board, the President, any Vice President or the
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Secretary. Unless otherwise specified in such notice, such resignation shall be
effective upon receipt thereof by the Board of Directors or any such officer,
and the acceptance of such resignation shall not be necessary to make it
effective.
.9 Removal of Directors. Any director or the entire Board of Directors
may be removed from office, either with or without cause, by vote of the holders
of a majority of the shares then entitled to vote for the election of directors.
.10 Action by Consent. Action required or permitted to be taken at any
meeting of the Board of Directors may be taken without a meeting if all members
of the Board consent thereto in writing. The writing or writings evidencing such
consents shall be filed with the minutes of proceedings of the Board.
III
COMMITTEES OF THE BOARD
.1 Designation, Power, Alternative Members and Term of Office. The
Board of Directors may, by resolution passed by a majority of the whole Board of
Directors, designate one or more committees, each committee to consist of one or
more of the directors of the Corporation. Any such committee, to the extent
provided in such resolution and permitted by law, shall have and may exercise
all the powers and authority of the Board of Directors in the management of the
business and affairs of the Corporation and may authorize the seal of the
Corporation or a facsimile thereof to be affixed to or reproduced on all such
papers as said committee shall designate. The Board of Directors may designate
one or more directors as alternate members of any committee who, in the order
specified by the Board of Directors, may replace any absent or disqualified
member at any meeting of the committee. If at a meeting of any committee one or
more of the members thereof should be absent or disqualified, and if either the
Board of Directors has not so designated any alternate member or members, or the
number of absent or disqualified members exceeds the number of alternate members
who are present at such meeting, then the member or members of such committee
(including alternates) present at any meeting and not disqualified from voting,
whether or not such member or members constitute a quorum, may unanimously
appoint another director to act at the meeting in the place of such absent or
disqualified member. The term of office of the members of each committee shall
be as fixed from time to time by the Board of Directors, subject to these
Bylaws; provided, however, that any committee member who ceases to be a member
of the Board of Directors shall ipso facto cease to be a committee member. Each
committee shall appoint a secretary, who may be the Secretary of the Corporation
or an Assistant Secretary thereof.
.2 Meetings, Notices and Records. Each committee may provide for the
holding of regular meetings, with or without notice, and may fix the times and
places at which such meetings shall be held. Special meetings of each committee
shall be held upon call by or at the direction of its chairman or, if there be
no chairman, by or at the direction of any one of its members. Except as
otherwise provided by law, notice of each special meeting of a committee shall
be mailed to each member of such committee, addressed to such member at such
member's residence or usual place of business, at least two days before the date
on which the meeting is to be held, or shall be sent to such member at such
place by telegram, radio or cable, or telephoned or delivered to such member
personally, not later than the day before the day on which the meeting is to be
held. Such notice shall state the time and place of such meeting, but need not
state the purposes thereof, unless otherwise required by law, the Certificate of
Incorporation or these Bylaws.
Notice of any meeting of a committee need not be given to any member
thereof who shall attend such meeting in person or who shall waive notice
thereof, before or after such meeting, in a signed writing. Each committee shall
keep a record of its proceedings.
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.3 Quorum, Manner of Acting and Presence. At each meeting of any
committee the presence of a majority of its members then in office shall be
necessary and sufficient to constitute a quorum for the transaction of business,
except that when a committee consists of one member, then the one member shall
constitute a quorum. In the absence of a quorum, a majority of the members
present at the time and place of any meeting may adjourn the meeting from time
to time until a quorum shall be present and the meeting may be held as adjourned
without further notice or waiver. The act of a majority of the members present
at any meeting at which a quorum is present shall be the act of such committee.
Subject to the foregoing and other provisions of these Bylaws and except as
otherwise determined by the Board of Directors, each committee may make rules
for the conduct of its business.
Members of any committee may participate in a meeting by means of a
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and such participation
shall constitute presence in person at such meeting.
.4 Resignations. Any member of a committee may resign at any time by
giving written notice of such resignation to the Board of Directors, the
Chairman of the Board, the President, any Vice President or the Secretary.
Unless otherwise specified in such notice, such resignation shall take effect
upon receipt thereof by the Board of Directors or any such officer, and the
acceptance of such resignation shall not be necessary to make it effective.
.5 Removal. Any member of any committee may be removed at any time with
or without cause by the Board of Directors.
.6 Vacancies. If any vacancy shall occur in any committee by reason of
death, resignation, disqualification, removal or otherwise, the remaining member
or members of such committee, so long as a quorum is present, may continue to
act until such vacancy is filled by the Board of Directors.
.7 Action by Consent. Action required or permitted to be taken at any
meeting of a committee may be taken without a meeting if all members of the
committee consent thereto in writing. The writing or writings evidencing such
consents shall be filed with the minutes of the proceedings of the committee.
IV
OFFICERS
.1 Officers. The officers of the Corporation shall include a President,
one or more Vice Presidents, a Treasurer and a Secretary, as the Board of
Directors may elect. The Board of Directors from time to time may also elect a
Chairman of the Board, one or more Senior Vice Presidents, one or more Executive
Vice Presidents, Assistant Treasurers, Assistant Secretaries and such other
officers as it shall deem necessary. Any number of offices may be held by the
same person.
.2 Election, Term of Office and Qualifications. Officers shall be
elected by the Board of Directors and shall hold office until the earlier of
their death, resignation, or removal in the manner hereinafter provided.
.3 Resignations. Any officer may resign at any time by giving written
notice of such resignation to the Board of Directors, the Chairman of the Board,
the President, a Vice President or the Secretary. Unless otherwise specified in
such written notice, such resignation shall take effect upon receipt thereof by
the Board of Directors or any such officer, and the acceptance of such
resignation shall not be necessary to make it effective.
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.4 Removal. Any officer may be removed with or without cause at any
meeting of the Board of Directors by affirmative vote of a majority of the
directors then in office.
.5 Vacancies. A vacancy in any office by reason of death, resignation,
removal, disqualification, or any other cause shall be filled for the unexpired
portion of the term in the manner prescribed by these Bylaws for regular
election to such office.
.6 Chairman of the Board. In the event the Board of Directors appoints
a Chairman of the Board, such officer shall be, unless another officer is
otherwise so designated, the chief executive officer of the Corporation and
shall preside at all meetings of the stockholders and the Board of Directors.
The Chairman of the Board shall have general powers of oversight, supervision
and management of the business and affairs of the Corporation and shall perform
such other duties as may be prescribed by the Board of Directors. Unless the
Board of Directors shall otherwise delegate such duties, the Chairman of the
Board shall be ex officio a member of all standing committees.
.7 The President. The President shall serve under the general direction
of the Chairman of the Board, if any, and if no Chairman of the Board is
appointed, shall serve as the chief executive officer of the Corporation, and
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. The Chief Executive Officer shall appoint and discharge employees
and agents of the Corporation (other than officers elected by the Board) and may
sign, with any other officer thereunto duly authorized, certificates
representing stock of the Corporation, the issuance of which shall have been
duly authorized (the signature to which may be a facsimile signature), and may
sign and execute, in the name and on behalf of the Corporation, deeds,
mortgages, bonds, contracts, agreements or other instruments, except in cases
where the signing and execution thereof shall be expressly delegated by the
Board to some other officer or agent. The President shall, if no Chairman of the
Board is appointed or in the absence or disability of the Chairman of the Board,
perform the duties and exercise the powers of the Chairman of the Board, shall
have the power to sign and execute, in the name and on behalf of the
Corporation, deeds, mortgages, bonds, contracts, agreements or other
instruments, except in cases where the signing and execution hereof shall be
expressly delegated by the Board to some other officer or agent and shall have
such other powers and perform such other duties as from time to time may be
prescribed by the Board of Directors, the Chairman of the Board, or these
Bylaws.
.8 Vice President. The Vice President, or, if more than one, the Vice
Presidents in the order established by the Board of Directors or the Chairman of
the Board, shall, in the absence or disability of the President, exercise all of
the powers and duties of the President. The Board of Directors may add such
designations to any Vice President's title of office as the Board deems
appropriate to designate such officer's level of superiority or such officer's
areas of responsibility. Each such Vice President shall have the power to sign
and execute, in the name and on behalf of the Corporation, deeds, mortgages,
bonds, contracts, agreements or other instruments, except in cases where the
signing and execution hereof shall be expressly delegated by the Board to some
other officer or agent and shall have such other powers and perform such other
duties as from time to time may be prescribed by the Board of Directors or the
Chairman of the Board or these Bylaws.
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.9 The Treasurer. The Treasurer shall have the custody of the corporate
funds and securities; shall keep full and accurate accounts of receipt and
disbursements in books belonging to the Corporation; shall deposit all monies,
and other valuable effects in the name and to the credit of the Corporation, in
such depositories as may be designated by the Board of Directors; and shall have
and perform such other duties incident to the office of Treasurer as from time
to time may be prescribed by the Board of Directors, the Chairman of the Board
or these Bylaws. The Treasurer 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 Chairman of the Board and the Board of
Directors, at regular meetings of the Board, whenever they may require it, an
account of all transactions.
.10 The Secretary. The Secretary shall:
(a) record all proceedings of the meetings of the stockholders,
the Board of Directors and any committees in a book or books to be kept for that
purpose;
(b) cause all notices to be duly given in accordance with the
provisions of these Bylaws and as required by law;
(c) whenever any committee shall be designated by resolution of
the Board of Directors, furnish the chairman of such committee with a copy of
such resolution;
(d) be custodian of the records and of the seal of the
Corporation, and cause such seal to be affixed to or a facsimile to be
reproduced on all certificates representing stock of the corporation prior to
the issuance thereof and to all instruments the execution of which on behalf of
the Corporation shall have been duly authorized;
(e) see that the lists, books, reports, statements, certificates
and other documents and records required by law are properly kept and filed;
(f) have charge of the stock and transfer books of the
Corporation, and exhibit such stock book at all reasonable times to such persons
as are entitled by law to have access thereto;
(g) sign (unless the Treasurer or an Assistant Secretary or an
Assistant Treasurer shall sign) certificates representing stock of the
Corporation, the issuance of which shall have been duly authorized (the
signature to which may be a facsimile signature); and
(h) in general, perform all duties incident to the office of
Secretary and have such other powers and perform such other duties as from time
to time may be prescribed by the Board of Directors, the Chairman of the Board
or these Bylaws.
.11 Assistant Secretaries. Assistant Treasurers and Subordinate
Officers. Assistant Treasurers and Assistant Secretaries shall have the power to
perform, in the name and on behalf of the Corporation, such duties as may be
required to be performed by the Secretary and Treasurer respectively, and shall
have and perform such other duties as from time to time may be prescribed by the
Board of Directors, the Chairman of the Board or these Bylaws. The Corporation
may have such assistant and subordinate officers as the Board of Directors may
from time to time deem desirable. Each such officer shall hold office for such
period and perform such duties as the Board of Directors, the Chairman of the
Board, or President may prescribe.
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V
INDEBTEDNESS OF THE CORPORATION AND DEPOSIT OF CORPORATE FUNDS
.1 Borrowing. No loans or advances shall be obtained or contracted for,
by or on behalf of the Corporation, and no negotiable paper shall be issued in
its name, unless and except as authorized by the Board of Directors. Such
authorization may be general or conformed to specific instances. Any officer or
agent of the Corporation thereunto so authorized may obtain loans and advances
for the Corporation, and for such loans and advances may make, execute and
deliver promissory notes, bonds, or other evidences of indebtedness of the
Corporation. Any officer or agent of the Corporation thereunto so authorized may
pledge, hypothecate or transfer as security for the payment of any and all
loans, advances, indebtedness and liabilities of the Corporation, any and all
stocks, bonds, other securities and other property at any time held by the
Corporation, and to that end may endorse, assign and deliver the same and do
every act and thing necessary or proper in connection therewith.
.2 Deposits. All funds of the Corporation not otherwise employed shall
be deposited from time to time to its credit in such banks, trust companies or
other depositories as the Board of Directors may select. Endorsements for
deposit to the credit of the Corporation in any of its duly authorized
depositories shall be made in such manner as the Board of Directors from time to
time may determine.
.3 Checks, Drafts, Etc. All checks, drafts or other orders for the
payment of money, and all notes or other evidences of indebtedness issued in the
name of the Corporation, shall be signed by such officer or officers or agent or
agents of the Corporation, and in such manner, as from time to time shall be
determined by the Board of Directors.
VI
STOCK
.1 Certificates. Every holder of stock shall be entitled to have a
stock certificate or certificates signed by or in the name of the Corporation by
the Chairman of the Board, the President or a Vice President, and by the
Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary,
of the Corporation, certifying the number of shares owned by him in the
Corporation. Any of or all the signatures on the stock certificate may be a
facsimile. In case any officer, transfer agent, or registrar who has signed or
whose facsimile signature has been placed upon a stock certificate shall have
ceased to be such officer, transfer agent, or registrar before such stock
certificate is issued, it may be issued by the Corporation with the same effect
as if he were such officer, transfer agent, or registrar at the date of issue.
.2 Lost, Stolen or Destroyed Stock Certificates; Issuance of New
Certificates. The Corporation may issue a new stock certificate in the place of
any stock certificate theretofore issued by it, alleged to have been lost,
stolen or destroyed, and the Corporation may require the owner of the lost,
stolen or destroyed stock certificate, or his legal representative, to give the
Corporation a bond sufficient to indemnify it against any claim that may be made
against it on account of the alleged loss, theft or destruction of any such
stock certificate or the issuance of such new stock certificate.
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VII
MISCELLANEOUS PROVISIONS
.1 Offices. The registered office of the Corporation shall be located
at the office of The Corporation Trust Incorporated, 1209 Orange Street,
Wilmington, Delaware 19801, and said corporation shall be the registered agent
of this Corporation at such office. The Corporation may have other offices,
either within or without the State of Delaware, at such place or places as shall
be determined from time to time by the Board of Directors.
.2 Fiscal Year. The fiscal year of the Corporation shall end on
December 31 of each year.
.3 Corporate Seal. The seal of the Corporation shall be circular in
form and contain the name of the Corporation. Such seal may be altered from time
to time at the discretion of the Board of Directors.
.4 Voting of Stock. Unless otherwise specifically directed by the Board
of Directors, all stock owned by the Corporation, other than Stock of the
Corporation, shall be voted on behalf of the Corporation, in person or by proxy,
by the Chairman of the Board, the President or any Vice President of the
Corporation. The Board of Directors, however, may by resolution appoint some
other person to vote such shares, in which case such person shall be entitled to
vote such shares upon the production of a certified copy of such resolution.
.5 Record Dates. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, the Board of Directors may fix a record date, which
record date shall not precede the date upon which the resolution fixing the
record date is adopted by the Board of Directors, and which record date shall
not be more than sixty (60) nor less than ten (10) days before the date of such
meeting. If no record date is fixed by the Board of Directors, the record date
for determining stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the day next preceding the day
on which notice is given, or, if notice is waived, at the close of business on
the day next preceding the day on which the meeting is held. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned meeting.
In order that the Corporation may determine the stockholders entitled
to consent to corporate action in writing without a meeting, the Board of
Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors, and which date shall not be more than ten (10) days after the date
upon which the resolution fixing the record date is adopted by the Board of
Directors. If no record date has been fixed by the Board of Directors, the
record date for determining stockholders entitled to consent to corporate action
in writing without a meeting, when no prior action by the Board of Directors is
required by the General Corporation Law of the State of Delaware, 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
an officer or agent of the Corporation having custody of the book in which
proceedings of meetings of Stockholders are recorded. Delivery made to the
Corporation's registered office shall be by hand or by certified or registered
mail, return receipt requested. If no record date has been fixed by the Board of
Directors and prior action by the Board of Directors is required by the General
Corporation Law of the State of Delaware, the record date for determining
stockholders entitled to consent to corporate action in writing without a
meeting shall be at the close of business on the day on which the Board of
Directors adopts the resolution taking such prior action.
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In order that the Corporation may determine the stockholders entitled
to receive payment of any dividend or other distribution or allotment of any
rights or the stockholders entitled to exercise any rights in respect of any
change, conversion or exchange of stock, or for the purpose of any other lawful
action, the Board of Directors may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date is
adopted, and which record date shall be not more than sixty (60) days prior to
such action. If no record date is fixed, the record date for determining
stockholders for any such purpose shall be at the close of business on the day
on which the Board of Directors adopts the resolution relating thereto.
VIII
INDEMNIFICATION AND LIABILITY
.1 Actions, Suits or Proceedings Other Than by or in the Right of the
Corporation. 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 investigation
(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 or officer of the
Corporation, or is or was serving or has agreed to serve at the request of the
Corporation as a director or 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 best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
.2 Actions or Suits by or in the Right of the Corporation. 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 or officer of the
Corporation, or is or was serving or has agreed to serve at the request of the
Corporation as a director or 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 and
except that no indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable for
negligence or misconduct in the performance of his duty to the Corporation
unless and only to the extent that the Court 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 Delaware or such other court shall deem
proper.
.3 Indemnification for Costs, Charges and Expenses of Successful Party.
Notwithstanding the other provisions of this Article, to the extent that a
director or officer of the Corporation has been
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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 8.1 and 8.2 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' fees) actually and reasonably
incurred by him or on his behalf in connection therewith.
.4 Determination of Right to Indemnification. Any indemnification under
Sections 8.1 and 8.2 of this Article (unless ordered by a court) shall be made
by the Corporation if 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 or officer is proper in the circumstances
because he has met the applicable standard of conduct set forth in Sections 8.1
and 8.2 of this Article.
.5 Advance of Costs, Charges and Expenses. Costs, charges and expenses
(including attorneys' fees) incurred by an officer or director in defending a
civil, criminal, administrative or investigative action, suit or proceeding
shall be paid by the Corporation in advance of the final disposition of such
action, suit or proceeding; provided, however, that the payment of such costs,
charges and expenses 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 or officer to repay all amounts so advanced unless it shall
ultimately be determined that such director or officer is entitled to be
indemnified by the Corporation as authorized in this Article. Such costs,
charges and expenses (including attorneys' fees) incurred by other employees and
agents may be so paid upon such terms and conditions, if any, as the Board of
Directors deems appropriate. The Board of Directors may, in the manner set forth
above, and upon approval of such director or 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.
.6 Procedure for Indemnification. Any indemnification under Sections
8.1, 8.2 and 8.3, or advance of costs, charges and expenses under Section 8.5 of
this Article, shall be made promptly, and in any event within 60 days, upon the
written request of the director or officer. The right to indemnification or
advances as granted by this Article shall be enforceable by the director or
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 7.5 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 8.1 or 8.2 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 8.1 and 8.2 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.
.7 Other Rights; Continuation of Right to Indemnification. The
indemnification and advancement of expenses provided by this Article shall not
be deemed exclusive of any other rights to which a person seeking
indemnification or advancement of expenses may be entitled under any law (common
or statutory), bylaw, agreement, vote of stockholders or disinterested directors
or otherwise, both as to action
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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. The
indemnification and advancement of expenses provided by, or granted pursuant to,
this Article shall, unless otherwise provided when authorized or ratified,
continue as to a person who has ceased to be a director or officer, and shall
inure to the benefit of the estate, heirs, executors and administrators of such
person. All right to indemnification under this Article shall be deemed to be a
contract between the Corporation and each director or 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 or officer or the obligations of the Corporation arising
hereunder.
.8 Insurance. 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 or officer of the Corporation, or is or was serving at the request of
the Corporation as a director or 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.
.9 Liability of Directors. No director of the Corporation shall be
liable to the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the Corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under the Section of the Delaware General
Corporation Law, or (iv) for any transaction from which the director derived an
improper personal benefit.
.10 Savings Clause. 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 or 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.
DATED: October 31, 2001.
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