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EXHIBIT 3.4
SECOND AMENDED AND RESTATED BYLAWS
OF
PEGASUS SYSTEMS, INC.
(A DELAWARE CORPORATION)
ARTICLE I.
OFFICES AND FISCAL YEAR
SECTION 1.1 REGISTERED OFFICE. The registered office of the Corporation
shall be as stated in the Certificate of Incorporation until a change in such
office is established by resolution of the Board of Directors and a statement
of such change is filed in the manner provided by applicable law.
SECTION 1.2 OTHER OFFICES. The Corporation may also have offices and keep
its books, documents, and records at such other places within or without the
State of Delaware as the Board of Directors may from time to time determine or
the business of the Corporation may require.
SECTION 1.3 FISCAL YEAR. The fiscal year of the Corporation shall end on
the 31st day of December in each year or on such other date as the Board of
Directors may designate by resolution.
ARTICLE II.
THE STOCKHOLDERS
SECTION 2.1 TYPES OF STOCK.
(a) The Corporation's Certificate of Incorporation, as amended (the
"Certificate of Incorporation") currently authorizes two classes of capital
stock - Common Stock and Preferred Stock. The aggregate number of shares of
Common Stock and Series A Preferred which the Corporation has authority to
issue is set forth in the Certificate of Incorporation.
(b) Except as provided herein or in the Certificate of Incorporation,
or except as may be provided by the laws of the State of Delaware, the holders
of Common Stock shall have exclusively all rights of stockholders.
SECTION 2.2 PLACE OF MEETING; ANNUAL MEETING. All meetings of the
stockholders of the Corporation shall be held at the principal offices of the
Corporation, or
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at such other place within or without the State of Delaware as shall be
designated by the Board of Directors in the notice of such meeting. The Board
of Directors may fix by resolution the date and time of the annual meeting of
the stockholders, and at said meeting the stockholders then entitled to vote
shall elect directors to serve until the next annual meeting of stockholders
and until their successors are duly nominated, qualified and elected, and shall
transact such other business as may properly be brought before the meeting.
SECTION 1.023 SPECIAL MEETINGS. Except as otherwise provided by applicable
law, the Certificate of Incorporation, or these Bylaws, a special meeting of
the stockholders of the Corporation entitled to vote may be called at any time
only by the Chairman of the Board or the President of the Corporation or the
Board of Directors.
SECTION 1.024 NOTICE OF MEETINGS. Unless otherwise provided by applicable
law, the Certificate of Incorporation, or these Bylaws, written notice of the
place, date, and hour of every meeting of the stockholders, whether annual or
special, shall be given to each stockholder of record entitled to vote at the
meeting at the address of such stockholder as it appears on the records of the
Corporation, not less than ten (10) nor more than sixty (60) calendar days
before the date of the meeting. Every notice of a special meeting shall state
the purpose or purposes thereof.
SECTION 1.025 QUORUM. MANNER OF ACTING AND ADJOURNMENT. (a) Except as
otherwise provided by the Certificate of Incorporation or these Bylaws, the
record holders of at least a majority of the shares of capital stock of the
Corporation issued and outstanding and entitled to vote thereat, must be
present in person or represented by proxy to constitute a quorum at any annual
or special meeting of the stockholders. Whether or not a quorum is present or
represented at any meeting of the stockholders, the record holders of a
majority of the shares of capital stock present or so represented shall have
the power to adjourn the meeting from time to time. When a meeting is adjourned
to another time or place, no notice need be given of the adjourned meeting if
the time and place thereof are announced at the meeting at which the
adjournment is taken. At any adjourned meeting at which a quorum shall be
present or represented, any business may be transacted which might have been
transacted at the original meeting. If an adjournment is for more than thirty
(30) calendar days, or if after an adjournment a new record date is fixed for
the adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the adjourned meeting. Except as
otherwise provided by applicable law, the Certificate of Incorporation or these
Bylaws, the affirmative vote of the record holders of a majority of the shares
of capital stock of the Corporation present in person or represented by proxy
and entitled to vote on the subject matter at a meeting duly called and held
with the necessary quorum, shall be the act of the stockholders at any annual
or special meeting of stockholders. Except as otherwise required by applicable
law or provided by the Certificate of Incorporation or these Bylaws, the
stockholders present in person or by proxy at a meeting duly called and held
can continue to do business with respect to any matters properly brought before
the meeting,
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until adjournment, notwithstanding withdrawal of enough stockholders to leave
less than a quorum.
(b) Shares of its own capital stock belonging to the Corporation, or
to another corporation if a majority of the shares entitled to vote in the
election of directors of such other corporation is held directly or indirectly
by the Corporation, shall not be entitled to vote and shall not be counted for
quorum purposes.
SECTION 1.026 ORGANIZATION. At every meeting of the stockholders, the
Chairman of the Board, or in the case of a vacancy in the office or absence of
the Chairman of the Board, one of the following persons present in the order
stated: the Vice Chairmen in their order of rank, the President, the
Vice-Presidents in their order of rank, a chairman designated by the Board of
Directors, or a chairman chosen by the stockholders entitled to cast two-thirds
(2/3) of the votes that all stockholders present in person or by proxy are
entitled to cast, shall act as chairman of the meeting, and the Secretary, or,
in such person's absence, an Assistant Secretary, if any, or any person
appointed by the chairman of the meeting, shall act as secretary of the
meeting.
SECTION 1.027 PROXIES. Each stockholder entitled to vote at a meeting of
stockholders or to express consent or dissent to corporate action in writing
without a meeting may authorize another person or persons to act for such
stockholder by proxy, but no such proxy shall be voted or acted upon after
three (3) years from its date, unless the proxy provides for a longer period.
Every proxy shall be executed in writing by the stockholder, or by the
stockholder's duly authorized attorney-in-fact, and shall be delivered to the
secretary of the meeting at or prior to the time designated in the order of
business for so delivering such proxies. A duly executed proxy shall be
irrevocable if it states that it is irrevocable and if, and only as long as, it
is coupled with an interest sufficient in law to support an irrevocable power.
A proxy may be made irrevocable regardless of whether the interest with which
it is coupled is an interest in the stock itself or an interest in the
Corporation generally.
SECTION 1.028 CONSENT OF STOCKHOLDERS IN LIEU OF MEETING. Any action
required or permitted to be taken at any annual or special meeting of
stockholders may only be taken upon the vote of the stockholders at an annual
or special meeting duly called and may not be taken by written consent of the
stockholders.
SECTION 1.029 VOTING LISTS. The officer who has charge of the stock ledger
of the Corporation shall prepare and make, at least ten (10) calendar days
before every meeting of stockholders, a complete list of the stockholders
entitled to vote at the meeting. The list shall be arranged in alphabetical
order showing the address of each stockholder and the number of shares
registered in the name of such 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 (10) calendar days prior to
the meeting, either at a place within the city where the
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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 of the Corporation shall be the only evidence as to
who are the stockholders entitled to examine the stock ledger, the list
required by this section, or the books of the Corporation or are entitled to
vote in person or by proxy at any annual or special meeting of the
stockholders.
SECTION 1.0210 VOTING PROCEDURES; JUDGES OF ELECTION. Except as otherwise
provided by applicable law, the Certificate of Incorporation, or these Bylaws,
or as directed by the chairman of the meeting, the election of directors and
the vote upon any other matter need not be by written ballot. In advance of any
meeting of stockholders, the Board of Directors may appoint one or more judges
of election, who need not be stockholders, to act at such meeting or any
adjournment thereof. If judges of election are not so appointed, the chairman
of any such meeting may, and, upon the demand of any stockholder entitled to
vote or such stockholder's proxy, at the meeting and before voting begins,
shall appoint judges of election. In the case of judges appointed upon demand
of a stockholder, the number of judges shall be either one (1) or three (3), as
determined by the stockholders present or represented by proxy, entitled to
cast a majority of votes that all stockholders present or so represented are
entitled to cast thereon. No person who is a candidate for office shall act as
a judge. In case any person appointed as judge fails to appear or refuses to
act, the vacancy may be filled by appointment made by the Board of Directors in
advance of the convening of the meeting, or at the meeting by the chairman of
the meeting.
Except as provided in the Certificate of Incorporation, if judges of
election are appointed as aforesaid, they shall (a) determine the number of
shares outstanding and the voting power of each, the shares represented at the
meeting, the existence of a quorum, and the authenticity, validity, and effect
of proxies; (b) receive votes or ballots; (c) hear and determine all challenges
and questions in any way arising in connection with the right to vote; (d)
count and tabulate all votes; (e) determine the results of the election or
other vote; and (f) do such acts as may be proper to conduct the election or
vote with fairness to all stockholders. If there be three (3) or more judges of
election, the decision, act, or certificate of a majority shall be effective in
all respects as the decision, act, or certificate of all.
On request of the chairman of the meeting or of any stockholder entitled
to vote or such stockholder's proxy, the judges shall make a report in writing
of any challenge, question, or other matter determined by them, and shall
execute a certificate of any fact found by them.
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ARTICLE III.
BOARD OF DIRECTORS
SECTION 1.031 POWERS. The Board of Directors shall have full power to
manage the business and affairs of the Corporation, and all powers of the
Corporation, except those specifically reserved or granted to the stockholders
by applicable law, the Certificate of Incorporation, these Bylaws, or that
certain Rights Agreement dated as of June 25, 1996 to which the Corporation is
a party (as it may be amended, the "Rights Agreement"), are hereby granted to
and vested in the Board of Directors. Without limiting the foregoing, the Board
of Directors may, if it so desires, appoint one or more advisory councils to
the Board of Directors, consisting of such numbers and with such duties as the
Board may deem appropriate.
SECTION 1.032 NUMBER, NOMINATIONS, ELECTION, TERM OF OFFICE, REMOVAL,
TERMINATION AND VACANCIES.
1. Number of Directors. The number of directors of the Corporation
shall be fixed from time to time only by action of not less than a
majority of the members of the Board of Directors then in office. The
number of directors comprising the Board of Directors of the Corporation
shall not be less than two (2) or more than twenty-five (25).
2. Classes. Subject to the rights, if any, of any series of Preferred
Stock then outstanding, the directors shall be divided into three classes,
designated Class I, Class II and Class III. The number of directors in
each class shall be the whole number contained in the quotient arrived at
by dividing the authorized number of directors by three, and if a fraction
is also contained in such quotient then if such fraction is one-third
(1/3) the extra director shall be a member of Class III and if the
fraction is two-thirds (2/3) then one of the extra directors shall be a
member of Class III and the other shall be a member of Class II. Upon
filing of the Corporation's Second Amended and Restated Certificate of
Incorporation with the Secretary of State of the State of Delaware, Donald
R. Dixon, John Biggs and W.C. Hammett, Jr. shall be members of Class I,
Malcolm Highet, Bruce W. Wolff and Mark C. Wells shall be members of Class
II, and Rockwell A. Schnabel, John F. Davis, III and Paul Travers shall be
members of Class III. The term of office of directors in each class shall
expire as follows: Class I shall expire at the 1998 annual meeting of
stockholders, Class II shall expire at the 1999 annual meeting of
stockholders, Class III shall expire at the 2000 annual meeting of
stockholders. At each such meeting of stockholders, directors shall be
elected to succeed those directors whose terms expire for a term of office
to expire at the third succeeding annual meeting of stockholders after
their election. All directors shall hold office until the annual meeting
of stockholders for the year in which their term expires and until their
successors are duly elected and qualified, or until their earlier death,
resignation, disqualification or removal.
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3. Vacancies. Subject to the rights, if any, of the holders of any
series of Preferred Stock then outstanding, newly created directorships
resulting from any increase in the authorized number of directors or any
vacancies in the Board of Directors resulting from death, resignation,
disqualification or removal may be filled only by a majority vote of the
directors then in office, though less than a quorum, and directors so
chosen shall hold office for a term expiring at the annual meeting of
stockholders at which the term of office of the class to which they have
been elected expires and until such director's successor shall have been
duly elected and qualified.
4. Removal. Any director or the entire Board of Directors may be
removed only for cause and only by the vote of the holders of two-thirds
(2/3) of the securities of the Corporation then entitled to vote at an
election of directors voting together as a single class.
SECTION 1.033 QUALIFICATIONS. All directors of the Corporation shall be
natural persons, but need not be residents of Delaware or stockholders of the
Corporation.
SECTION 1.034 RESIGNATIONS. Any director of the Corporation may resign at
any time by giving written notice to the Chairman of the Board, the President,
or the Secretary of the Corporation. Such resignation shall take effect at the
date of the receipt of such notice or at any later time specified therein and,
unless otherwise specified therein, the acceptance of such resignation shall
not be necessary to make it effective. Upon the effectiveness of such
resignation, the vacancy created thereby shall be filled in the manner provided
in Section 3.2 hereof.
SECTION 1.035 ORGANIZATION. At every meeting of the Board of Directors,
the Chairman of the Board, or in the case of a vacancy in the office or absence
of the Chairman of the Board, one of the following officers present in the
order stated: the President, the Vice Presidents in their order of rank, or a
chairman chosen by the affirmative vote of the directors holding two-thirds
(2/3) of the votes of the Board of Directors present, shall act as chairman of
the meeting, and the Secretary, or, in the absence of the Secretary, an
Assistant Secretary, if any, or any other person appointed by the chairman of
the meeting, shall act as secretary of the meeting.
SECTION 1.036 PLACE OF MEETING. All meetings of the Board of Directors of
the Corporation shall be held at the principal offices of the Corporation, or
at such other place within or without the State of Delaware as shall be
designated in a notice of such meeting or otherwise.
SECTION 1.037 ANNUAL AND REGULAR MEETINGS. The Board of Directors shall
meet for the purpose of organization, the election of officers and the
transaction of other business, as soon as practicable after each annual meeting
of stockholders, on the same day and at the same place where such annual
meeting shall be held. Notice of such meeting need not be given. If such annual
meeting is not so held, then the annual meeting
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of the Board of Directors may be held at such other time or place (within
or without the State of Delaware) as shall be specified in a notice thereof
given as required herein. Regular meetings of the Board of Directors may be
held without notice at such time and place as shall be designated from time to
time by the Board of Directors. At such regular meetings, the directors shall
transact such business as may properly be brought before the meeting. Notice of
regular meetings of the Board of Directors need not be given except as
otherwise required by applicable law or these Bylaws.
SECTION 1.038 SPECIAL MEETINGS. Special meetings of the Board of Directors
may be held whenever called by the Chairman of the Board, the President or by
the affirmative vote of twenty percent (20%) or more of the directors then in
office. Except as otherwise provided by applicable law, the Certificate of
Incorporation, or these Bylaws, notice of each such meeting shall be given to
each director by telephone or in writing at least three (3) calendar days (in
the case of notice by telephone, telegram, cable, or facsimile transmission) or
seven (7) calendar days (in the case of notice by mail) before the time at
which the meeting is to be held. Each such notice shall state the time and
place of the meeting to be so held, and shall be deemed to be given at the time
when so made by telephone, sent by telegram, cable, or facsimile transmission,
or deposited in the U.S. mail. Unless otherwise indicated in the notice
thereof, any and all business may be transacted at any special meeting.
SECTION 1.039 QUORUM, MANNER OF ACTING, AND ADJOURNMENT. (a) Each director
shall have one (1) vote on any matter voted upon by the Board of Directors. The
voting and other rights of the Corporation's directors and stockholders are
further defined and limited by the Certificate of Incorporation and the Rights
Agreement.
(b) Except as otherwise provided by applicable law, the Certificate
of Incorporation, the Rights Agreement or these Bylaws, as amended from time to
time, a majority of the total number of directors then in office shall
constitute a quorum for the transaction of business at all meetings of the
Board of Directors, and the act of a majority of the directors present at any
meeting at which there is a quorum shall be the act of the Board. If a quorum
shall not be present at any meeting of the Board of Directors, the directors
present thereat may adjourn the meeting to another date and time by giving
notice to each director not less than five (5) calendar days before the time at
which said adjourned meeting is to be held, in the manner set forth in Section
3.8 hereof. At any adjourned meeting at which a quorum is present, any business
may be transacted that might have been transacted at the meeting as originally
called.
SECTION 1.0310 CONSENT IN LIEU OF MEETING. Except as otherwise provided by
applicable law, the Certificate of Incorporation, or these Bylaws, and
notwithstanding Section 3.8 hereof, any action required or permitted to be
taken at any meeting of the Board of Directors, or of any committee thereof,
may be taken without a meeting if all members of the Board or the committee, as
the case may be, consent thereto in writing, and the writing or writings are
filed with the minutes of proceedings of the Board or the committee, as the
case may be.
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SECTION 1.0311 CONFERENCE TELEPHONE MEETINGS. Except as otherwise
provided by applicable law, the Certificate of Incorporation, or these Bylaws,
one or more directors may participate in a meeting of the Board of Directors,
or of any committee thereof, by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other. Participation in a meeting pursuant to this
section shall constitute presence in person at such meeting.
SECTION 1.0312 EXECUTIVE AND OTHER COMMITTEES. The Board of Directors may,
by resolution adopted by the affirmative vote of a majority of the whole Board
of Directors, designate and name an Executive Committee and one or more other
committees, each committee to consist of one (1) or more directors, provided
that any Executive Committee shall have at least three (3) directors. The Board
may designate one (1) or more directors as alternate members of any committee
to replace any absent or disqualified member at any meeting of the committee.
In the absence or disqualification of a member (and the alternate or
alternates, if any, designated for such member) of any committee, the member or
members thereof 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 any such absent
or disqualified member.
Any such committee (to the extent provided in the resolution establishing
such committee) shall conduct itself, including with respect to provisions for
votes of its members, as set forth in resolutions adopted by the Board of
Directors, and 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, expressly including the power and authority to declare a dividend,
to adopt a certificate of ownership and merger pursuant to Section 253 of the
Delaware General Corporation Law (the "GCL"), and to authorize the seal of the
Corporation to be affixed to all papers which may require it.
Each committee designated pursuant to this section shall keep regular
minutes of its meetings and report the same to the Board of Directors when
required.
SECTION 1.0313 COMPENSATION OF DIRECTORS. The Board of Directors shall
have the authority to fix the compensation of directors. The directors may be
paid their expenses, if any, of attendance at each meeting of the Board of
Directors and may be paid a fixed sum for attendance at each meeting of the
Board of Directors or a stated salary as director. No such payment shall
preclude any director from serving the Corporation in any other capacity and
receiving compensation therefor; provided that, the Board, in its discretion,
may reduce the compensation of any director who is concurrently receiving
compensation for services rendered to the Corporation as an officer thereof.
Members of special or standing committees may be paid like compensation for
attending committee meetings.
SECTION 1.0314 INTERESTED DIRECTORS. No contract or transaction between
the Corporation and one (1) or more of its directors or officers, or between
the Corporation and
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any other corporation, partnership, association, or other organization in which
one or more of its directors or officers are directors or officers, or have a
financial interest, shall be void or voidable solely for this reason, or solely
because the director or officer is present at or participates in the meeting of
the Board or of a committee thereof which authorizes the contract or
transaction, or solely because his, her or their votes are counted for such
purpose, if:
(a) The material facts as to his or her relationship or interest and
as to the contract or transaction are disclosed or are known to
the Board of Directors or the committee, and the Board or
committee in good faith authorizes the contract or transaction
by the affirmative vote of a majority of the disinterested
directors, even though the disinterested directors comprise less
than a quorum;
(b) The material facts as to his or her relationship or interest and
as to the contract or transaction are disclosed or are known to
the stockholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of
the stockholders; or
(c) the contract or transaction is fair to the Corporation as of the
time it is authorized, approved or ratified by the Board of
Directors, a committee thereof, or the stockholders.
Common or interested directors may be counted in determining the presence of a
quorum at a meeting of the Board of Directors or of a committee which
authorizes the contract or transaction.
ARTICLE IV.
NOTICE-WAIVERS
SECTION 1.041 NOTICE. WHAT CONSTITUTES. Except as otherwise provided by
applicable law, the Certificate of Incorporation or the Bylaws, any provision
of applicable law, the Certificate of Incorporation or these Bylaws which
requires notice to be given to any director or stockholder of the Corporation
shall not be deemed or constituted to require personal notice (unless otherwise
expressly provided therein), but rather such notice may be given via telephone,
facsimile or first class mail addressed to such director or stockholder at his
or her address as it appears on the records of the Corporation, with postage
thereon prepaid, and such notice shall be deemed to be given at the time when
the same is deposited in the U.S. mail.
SECTION 1.042 WAIVERS OF NOTICE. Whenever any notice is required to be
given under applicable law, the Certificate of Incorporation or these Bylaws, a
written waiver thereof, signed by the person or persons entitled to such
notice, whether before or after the time stated therein, shall be deemed
equivalent to notice. Except as otherwise
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provided by applicable law, the Certificate of Incorporation or these Bylaws,
neither the business to be transacted at nor the purposes of, any regular or
special meeting of the stockholders, directors, or a committee of directors
need be specified in any written waiver of notice of such meeting.
Attendance of a person, either in person or by proxy, at any meeting shall
constitute a waiver of notice of such meeting, except when a person attends a
meeting for the express purpose of objecting at the beginning of the meeting to
the transaction of any business because the meeting has not been lawfully
called or convened.
ARTICLE V.
OFFICERS
SECTION 1.051 NUMBER, QUALIFICATIONS AND DESIGNATION. The officers of the
Corporation shall be chosen by the Board of Directors and shall be a President
and a Secretary, and may include one or more Vice Presidents, a Treasurer, and
such other officers as may be elected in accordance with the provisions of
Section 5.3 of this Article V. One person may hold more than one (1) office.
Except as provided below with respect to the Chairman of the Board, and Vice
Chairmen of the Board, officers may, but need not be, directors or stockholders
of the Corporation. The Board of Directors shall also elect, from among the
members of the Board, a Chairman of the Board, and one or more Vice Chairmen of
the Board, each of which shall be deemed to be an officer of the Corporation.
SECTION 1.052 ELECTION, TERM OF OFFICE, RESIGNATION, AND REMOVAL. The
officers of the Corporation, except those elected by delegated authority
pursuant to Section 5.3 of this Article V, shall be elected annually by the
Board of Directors, and each such officer shall hold his or her office until
his or her successor shall have been duly elected and qualified, or until his
or her earlier death, resignation or removal. Any officer may resign at any
time upon written notice to the Corporation. Subject to the terms of any
applicable employment or service agreement, all officers, agents, and employees
shall be subject to removal, with or without cause, at any time by the Board of
Directors [, the Chairman of the Board or the President]. The election or
appointment of an officer shall not of itself create contract rights. Any
vacancy caused by the death, resignation, or removal of any officer, or
otherwise, may be filled by the Board of Directors or pursuant to delegated
authority as provided in Section 5.3 hereof.
SECTION 1.053 OTHER OFFICERS, COMMITTEES, AND AGENTS. The Board of
Directors may from time to time elect such other officers, including Assistant
Secretaries and Assistant Treasurers, and appoint such committees, employees,
or other agents as it deems necessary. Such officers, committee members,
employees, or other agents shall hold their offices for such terms and shall
exercise such powers and perform such duties as are provided in these Bylaws or
as the Board of Directors may from time to time determine by resolution. By
resolution, the Board of Directors may delegate to any officer or committee the
power to elect subordinate officers and to retain or appoint employees
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or other agents, or committees thereof, and to prescribe the authority and
duties of such subordinate officers, committees, employees, or other agents.
Subject to the terms of any applicable employment or service agreement, all
such subordinate officers, agents, and employees shall also be subject to
removal, with or without cause, at any time by the officers or committee
appointing them.
SECTION 1.054 THE CHAIRMAN OF THE BOARD. The Chairman of the Board shall
preside at meetings of the Board of Directors and at meetings of the
stockholders. The Chairman of the Board shall counsel with and advise the
President and perform such other duties as may be from time to time assigned to
the Chairman of the Board of Directors. Except as otherwise provided by
resolution of the Board, the Chairman of the Board shall be ex-officio a member
of all committees of the Board.
SECTION 1.055 THE VICE CHAIRMEN OF THE BOARD. The Vice Chairmen of the
Board shall perform the duties of the Chairman of the Board in the Chairman's
absence (in their order of rank) and such other duties as may from time to time
be assigned to them by the Board of Directors, the Chairman of the Board, or
the President.
SECTION 1.056 THE PRESIDENT. The President shall perform all of the duties
usually incident to such office, and such other duties as may from time to time
be assigned to the President by the Board of Directors. In the absence of the
Chairman of the Board and any Vice Chairmen of the Board, the President shall
preside at all meetings of the stockholders and of the Board of Directors.
SECTION 1.057 THE SECRETARY. The Secretary, or in the Secretary's absence
an Assistant Secretary, (a) shall attend all meetings of the stockholders and
of the Board of Directors and shall record the proceedings of the meetings of
the stockholders and the Board of Directors and of committees of the Board in a
book or books to be kept for that purpose; (b) shall see that notices are given
and records and reports properly kept and filed by the Corporation as required
by law; (c) shall be the custodian of the seal of the Corporation and see that
it is affixed to all documents to be executed on behalf of the Corporation
under its seal; and (d) in general, shall perform all duties incident to the
office of Secretary, and such other duties as may from time to time be assigned
to the Secretary by the Board of Directors, the Chairman of the Board, or the
President.
SECTION 1.058 THE TREASURER. The Treasurer, or in Treasurer's absence, an
Assistant Treasurer, (a) shall have or provide for the custody of, and when
proper pay out, disburse, or otherwise dispose of, the funds or other property
of the Corporation; (b) shall collect and receive or provide for the collection
and receipt of moneys earned by or in any manner due to or received by the
Corporation; (c) shall deposit all funds in his custody as Treasurer in such
banks or other places of deposit as the Board of Directors may from time to
time designate; (d) shall keep accurate financial records and accounts and,
whenever so required by the Board of Directors, render statements showing his
transactions as Treasurer and the financial condition of the Corporation; and
(e) in general, shall discharge
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such other duties as may from time to time by assigned to the Treasurer by the
Board of Directors, the Chairman of the Board, or the President.
SECTION 1.059 SALARIES. The salaries and other compensation of the
officers and agents of the Corporation elected or appointed by the Board of
Directors shall be fixed from time to time by the Board of Directors. The
salaries and other compensation of subordinate officers appointed pursuant to
delegated authority under Section 5.03 hereof shall be fixed from time to time
by the officers or committee appointing them.
ARTICLE VI.
CERTIFICATES OF STOCK, TRANSFER, ETC.
SECTION 1.061 ISSUANCE. Each stockholder shall be entitled to a
certificate or certificates for shares of stock of the Corporation owned by
such stockholder upon request therefor. The stock certificates of the
Corporation shall be consecutively numbered and shall be registered in the
stock ledger and transfer books of the Corporation as they are issued. They
shall be signed by the Chairman of the Board or by the President or a Vice
President, and by the Secretary or an Assistant Secretary, if any, or by the
Treasurer or an Assistant Treasurer, if any, and shall bear the corporate seal,
which may be a facsimile, engraved, or printed. Any and all of the signatures
upon such certificate may be a facsimile, engraved, or printed. In case any
officer, transfer agent, or registrar who has signed, or whose facsimile
signature has been placed upon, any share certificate shall have ceased to be
such officer, transfer agent, or registrar before the certificate is issued, it
may be issued with the same effect as if such person were such officer,
transfer agent, or registrar at the date of its issue.
SECTION 1.062 TRANSFER, LEGENDS, ETC. Upon surrender to the Corporation or
the transfer agent of the Corporation of a certificate for shares duly endorsed
or accompanied by proper evidence of succession, assignation, or authority to
transfer the Corporation shall issue a new certificate to the person entitled
thereto, cancel the old certificate, and record the transaction upon its books.
The Board of Directors may by resolution, (a) impose restrictions on transfer
or registration of transfer of shares of stock of the Corporation, and (b)
require as a condition to the issuance or transfer of such shares that the
person or persons to whom such shares are to be issued or transferred agree in
writing to such restrictions. In the event that any such restrictions on
transfer or registration of transfer are so imposed, the Corporation shall
require that such restrictions be conspicuously noted on all certificates
representing such shares. [In addition, all shares of the Corporation's stock
are subject to several restrictions and limitations as set forth in the Rights
Agreement, which are to be noted on all certificates representing such shares.]
SECTION 1.063 LOST, STOLEN, DEFACED, WORN OUT, OR DESTROYED. The Board of
Directors may direct a new certificate or certificates to be issued in place of
any certificate or certificates theretofore issued by the Corporation alleged
to have been lost, stolen, defaced, worn-out, or destroyed, upon the making of
an affidavit of that fact by the
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person claiming the certificate of stock to be lost, stolen, defaced, worn out,
or destroyed. When authorizing such issuance of a new certificate or
certificates, the Corporation may, as a condition precedent thereto, (a)
require the owner of any defaced or worn out certificate to deliver such
certificate to the Corporation and order the cancellation of the same, and (b)
require the owner of any lost, stolen or destroyed certificate or certificates,
or his legal representative, to advertise the same in such manner as the
Corporation shall require and to give the Corporation a bond in such sum as it
may direct as indemnity against any claim that may be made against the
Corporation with respect to the certificate alleged to have been lost, stolen,
or destroyed. Thereupon, the Corporation may cause to be issued to such person
a new certificate in replacement for the certificate alleged to have been lost,
stolen, defaced, worn out, or destroyed. Upon the stub of every new certificate
so issued shall be noted the fact of such issue and the number, date, and name
of the registered owner of the lost, stolen, defaced, worn out, or destroyed
certificate in lieu of which the new certificate is issued. Every certificate
issued hereunder shall be issued without payment to the Corporation for such
certificate; provided that, there shall be paid to the Corporation a sum equal
to any exceptional expenses incurred by the Corporation in providing for or
obtaining any such indemnity and security as is referred to herein.
SECTION 1.064 RECORD HOLDER OF SHARES. Except as otherwise provided by
applicable law, the Certificate of Incorporation, or these Bylaws, the
Corporation (a) shall be entitled to recognize the exclusive right of a person
registered on its books as the owner of shares to receive dividends and to vote
as such owner, (b) shall be entitled to hold liable for any required calls and
assessments a person so registered, and (c) shall not be bound to recognize (i)
any entity or person as a transferee of stock unless such entity or person both
complies with all transfer and other restrictions, if any, imposed hereby or by
the Certificate of Incorporation, or (ii) any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or
not it shall have express or other notice thereof.
Unless otherwise required under applicable law, the Corporation may treat
a fiduciary as having capability and authority to exercise all rights of
ownership in respect of shares of record in the name of a decedent holder, a
person, firm, or corporation in conservation, receivership, or bankruptcy, a
minor, an incompetent person, or a person under disability, as the case may be,
for whom such fiduciary is acting, and the Corporation, its transfer agent, and
its registrar, if any, upon presentation of evidence of appointment of such
fiduciary shall be under no duty to inquire as to the powers of such fiduciary
and shall not be liable for any loss caused by any act done or omitted to be
done by the Corporation or its transfer agent or registrar, if any, in reliance
thereon.
SECTION 1.065 DETERMINATION OF STOCKHOLDERS OF RECORD. 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, or to express consent
to corporate action in writing without a meeting, or entitled to receive
payments of any dividend or other distribution or allotment of any rights, or
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
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Board of Directors may fix, in advance, a record date, which shall not be more
than sixty (60) nor less than (10) calendar days before the date of such
meeting, nor more than sixty (60) calendar days prior to any other action.
If no record date is fixed:
(a) 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.
(b) The record date for determining stockholders for any other
purpose shall be at the close of business on the day on which
the Board of Directors adopts the resolution relating thereto.
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
that the Board of Directors may fix a new record date for the adjourned
meeting.
SECTION 1.066 APPOINTMENT OF TRANSFER AGENTS, REGISTRARS, ETC. The Board
of Directors may from time to time by resolution appoint (a) one (1) or more
transfer agents and registrars for the shares of stock of the Corporation, (b)
a plan agent to administer any employee benefit, dividend reinvestment, or
similar plan of the Corporation, and (c) a dividend disbursing agent to
disburse any and all dividends authorized by the Board and payable with respect
to the shares of stock of the Corporation. The Board of Directors shall also
have authority to make such other rules and regulations not inconsistent with
applicable law, the Certificate of Incorporation, or these Bylaws, as it deems
necessary or advisable with respect to the issuance, transfer, and registration
of certificates for shares and the shares of stock represented thereby.
ARTICLE VII.
GENERAL PROVISIONS
SECTION 1.071 DIVIDENDS. Subject to applicable law, the Certificate of
Incorporation and the Rights Agreement, dividends upon the shares of capital
stock of the Corporation may be declared by the Board of Directors at any
regular or special meeting. Dividends may be paid in cash, in property, or in
shares of the capital stock of the Corporation, or in any combination thereof,
but only out of funds available for the payment of dividends as provided by
applicable law. Any dividends declared upon the stock of the Corporation shall
be payable on such date or dates as the Board of Directors shall determine by
resolution. If the date fixed for the payment of any dividend shall in any year
fall upon a legal holiday, then the dividend payable on such date shall be paid
on the next day not a legal holiday.
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Before payment of any dividend, there may be set aside out of any funds of
the Corporation available for dividends such sum or sums as the Board of
Directors from time to time, in its discretion, shall determine by resolution
is proper as a reserve or reserves to meet contingencies, for equalizing
dividends, or for repairing or maintaining any property of the Corporation, or
for such other purpose as the Board of Directors shall so determine is in the
best interests of the Corporation and its stockholders. The Board may modify or
abolish any such reserves in the manner in which it was created.
SECTION 1.072 CONTRACTS, ETC. Except as otherwise provided by applicable
law, the Certificate of Incorporation, or these Bylaws, the Board of Directors
may authorize any officer or officers, any employee or employees, or any agent
or agents, to enter into any contract or to execute, acknowledge, or deliver
any agreement, deed, mortgage, bond, or other instrument in the name of and on
behalf of the Corporation and to affix the Corporation's seal thereon. Such
authority may be general or confined to specific instances.
SECTION 1.073 CHECKS. All checks, notes, obligations, bills of exchange,
acceptances, or other orders in writing shall be signed by such person or
persons as the Board of Directors may from time to time designate by
resolution.
SECTION 1.074 CORPORATE SEAL. The corporate seal shall have inscribed
thereon the name of the Corporation, the year of its organization, and the
words "Corporate Seal, Delaware." The seal may be used by causing it or a
facsimile thereof to be impressed or affixed or in any other manner reproduced.
SECTION 1.075 DEPOSITS. All funds of the Corporation shall be deposited
from time to time to credit of the Corporation in such banks, trust companies,
or other depositories as the Board of Directors may approve or designate, and
all such funds shall be withdrawn only upon checks or other orders signed by
such one or more officers, employees, or agents as the Board of Directors shall
from time to time designate.
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SECTION 1.076 EXAMINATION OF CORPORATE RECORDS. Upon written demand under
oath stating the purpose thereof, every stockholder of record shall have a
right to examine, in person or by attorney or other agent, during ordinary
business hours and for any proper purpose, the Corporation's stock ledger, a
list of its stockholders, and its other books and records and to make copies or
extracts therefrom. A proper purpose shall mean a purpose reasonably related to
such person's interest as a stockholder. In every instance where an attorney or
other agent shall be the person who seeks the right of inspection, the demand
under oath shall be accompanied by a power of attorney or other writing which
authorizes the attorney or other agent to so act on behalf of the stockholder.
The demand under oath shall be directed to the Corporation as its registered
office in Delaware or at its principal place of business.
Any director shall have the right to examine the Corporation's stock
ledger, a list of its stockholders, and its other books and records during
ordinary business hours for a purpose reasonably related to his or her position
as a director.
SECTION 1.077 INDEMNIFICATION OF DIRECTORS AND OFFICERS. The Corporation
shall indemnify to the fullest extent authorized or permitted by law any
current or former director or officer of the Corporation (or his or her
testator or estate) made or threatened to be made a party to any threatened,
pending, or completed action, suit, or proceeding, whether criminal, civil
administrative, or investigative, by reason of the fact that he or she is or
was a director or officer of the Corporation or is or was serving, at the
request of the Corporation, as a director, officer, employee, or agent of
another corporation, partnership,
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joint venture, trust, employee benefit plan, or other enterprise. Subject to
applicable law, the Corporation may indemnify an employee or agent of the
Corporation to the extent that and with respect to such proceedings as, the
Board of Directors may determine by resolution, in its discretion.
SECTION 1.078 AMENDMENT OF BYLAWS. The Board of Directors is expressly
authorized to adopt, amend or repeal the Bylaws of the corporation. Any Bylaws
made by the directors under the powers conferred hereby may be amended or
repealed by the directors or by the stockholders. Notwithstanding the foregoing
and anything contained in the Bylaws to the contrary, the Bylaws shall not be
amended or repealed by the stockholders, and no provision inconsistent
therewith shall be adopted by the stockholders, without the affirmative vote of
the holders of at least two-thirds (2/3) of the voting power of all shares of
the corporation entitled to vote generally in the election of directors voting
together as a single class.
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