EXHIBIT 3.6
BYLAWS
OF
TRINITY INDUSTRIES LEASING COMPANY
Amended: November 15, 2001
BYLAWS OF
TRINITY INDUSTRIES LEASING COMPANY
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 ......................................................................... 6
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
Section 6.2 Lost, Stolen or Destroyed Stock
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 ......................................................... 11
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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 ............................... 12
Section 8.8 Insurance ..................................................... ...................... 12
Section 8.9 Liability of Directors ............................................................... 12
Section 8.10 Savings Clause ....................................................................... 12
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TRINITY INDUSTRIES LEASING COMPANY
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BYLAWS
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I
MEETINGS OF STOCKHOLDERS
Section 1.1 Annual Meetings. The annual meeting of the stockholders for
the election of directors and for the transaction of such other business as
properly may come before such meeting shall be held in each year or at such
time, date or place, within or without the State of Delaware, as may be
designated by the Board of Directors.
Section 1.2 Special Meetings. Special meetings of the stockholders for
any 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.
Section 1.3 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.
Section 1.4 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.
Section 1.5 Adjournments. In the absence of a quorum, a majority in
interest of the stockholders entitled to vote, present in person or by proxy,
or, if no stockholder entitled to vote is present in person or by proxy, any
officer entitled to preside at or act as secretary of such meeting, may adjourn
the meeting from time to time until a quorum shall be present.
Section 1.6 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.
Section 1.7 Proxies. Any stockholder entitled to vote may vote by
proxy, provided that the instrument authorizing such proxy to act shall have
been executed in writing (which shall include telegraphing or cabling) by the
stockholder 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.
Section 1.8 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.
Section 1.9 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
Section 2.1 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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Section 2.2 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.
Section 2.3 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.
Section 2.4 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.
Section 2.5 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.
Section 2.6 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.
Section 2.7 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.
Section 2.8 Resignation of Directors. Any director may resign at any
time by giving written notice of such resignation to the Board of Directors, the
Chairman of the Board, the President, any Vice
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President or the 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.
Section 2.9 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.
Section 2.10 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
Section 3.1 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.
Section 3.2 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.
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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.
Section 3.3 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.
Section 3.4 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.
Section 3.5 Removal. Any member of any committee may be removed at any
time with or without cause by the Board of Directors.
Section 3.6 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.
Section 3.7 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
Section 4.1 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.
Section 4.2 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.
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Section 4.3 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.
Section 4.4 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.
Section 4.5 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.
Section 4.6 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.
Section 4.7 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 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.
Section 4.8 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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Section 4.9 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.
Section 4.10 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.
Section 4.11 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
Section 5.1 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.
Section 5.2 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.
Section 5.3 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
Section 6.1 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.
Section 6.2 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
Section 7.1 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.
Section 7.2 Fiscal Year. The fiscal year of the Corporation shall end
on December 31 of each year.
Section 7.3 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.
Section 7.4 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.
Section 7.5 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
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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.
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
Section 8.1 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.
Section 8.2 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 Chancery of Delaware or the
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of such liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such costs, charges and expenses which the Court of Chancery or
such other court shall deem proper.
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Section 8.3 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 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.
Section 8.4 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.
Section 8.5 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.
Section 8.6 Procedure for Indemnification. Any indemnification under
Sections 8.1, 8.2 and 8.3, or advance of costs, charges and expenses under
Sections 8.1, 8.2 and 8.3 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.
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Section 8.7 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 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.
Section 8.8 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.
Section 8.9 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 Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which the director derived an
improper personal benefit.
Section 8.10 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.
Amended : November 15, 2001
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