1
Exhibit 3(b)
BY-LAWS
OF
XTRA CORPORATION
SECTION 1 LAW, CERTIFICATE OF INCORPORATION
AND BY-LAWS
1.1 These by-laws are subject to the certificate of incorporation of the
corporation. In these by-laws, references to law, the certificate of
incorporation and bylaws mean the law, the provisions of the certificate of
incorporation and the by-laws as from time to time in effect, and capitalized
terms defined in the certificate of incorporation are used with the meanings
set forth therein.
Section 2. STOCKHOLDERS
2.1 ANNUAL MEETING. The annual meeting of stockholders shall be held at
10:00 a.m. on the last or second to last business day of January in each year
which is not a Monday or a Friday, or at such other date and time as shall be
designated from time to time by the board of directors and stated in the notice
of the meeting, at which they shall elect a board of directors and transact
such other business as may be required by law or these by-laws or as may
properly come before the meeting. The actual date of the annual meeting shall
be publicly announced each year after the date thereof has been set by the
board.
2.2 SPECIAL MEETINGS. A special meeting of the stockholders (i) may be
called at any time by the chairman of the board, if any, the president or the
board of directors, and (ii) shall be called by the secretary, or in the case
of the death, absence, incapacity or refusal of the secretary, by an assistant
secretary or some other officer, upon receipt of an application of (a) the
holder or holders of twenty percent (20%) of the shares issued and outstanding
entitled to notice of, and to vote at, a meeting of stockholders, or (b) a
majority of the directors then in office. Any such application shall state the
purpose or purposes of the proposed meeting. Any such call shall state the
place, date, hour, and purposes of the meeting and shall be given within
fifteen (15) days of receipt of the application for such special meeting.
Business transacted at any special meeting shall be limited to the purpose or
purposes thereof stated in the notice of such special meeting.
2.3 PLACE OF MEETING. All meetings of the stockholders for the election
of directors or for any other purpose shall be held at such place within or
without the State of Delaware
1
2
as may be determined from time to time by the chairman of the board, if any,
the president or the board of directors. Any adjourned session of any meeting
of the stockholders shall be held at the place designated in the adjournment.
2.4 NOTICE OF MEETINGS. Except as otherwise provided by law, a written
notice of each meeting of stockholders stating the place, day and hour thereof
and, in the case of a special meeting, the purposes for which the meeting is
called, shall be given not less then ten nor more than sixty days before the
meeting, to each stockholder entitled to vote thereat, and to each stockholder
who, by law, by the certificate of incorporation or by these by-laws, is
entitled to notice, by leaving such notice with him or at his residence or
usual place of business, or by depositing it in the United States mail, postage
prepaid, and addressed to such stockholder at his address as it appears in the
records of the corporation. Such notice shall be given by the secretary, or by
an officer or person designated by the board of directors, or in the case of a
special meeting by the officer calling the meeting. As to any adjourned
session of any meeting of stockholders, notice of the adjourned meeting need
not be given if the time and place thereof are announced at the meeting at
which the adjournment was taken except that if the adjournment is for more than
thirty days or if after the adjournment a new record date is set for the
adjourned session, notice of any such adjourned session of the meeting shall be
given in the manner heretofore described. No notice of any meeting of
stockholders or any adjourned session thereof need be given to a stockholder if
a written waiver of notice, executed before or after the meeting or such
adjourned session by such stockholder, is filed with the records of the meeting
or if the stockholder attends such meeting without objecting at the beginning
of the meeting to the transaction of any business because the meeting is not
lawfully called or convened. Neither the business to be transacted at, nor the
purpose of, any meeting of the stockholders or any adjourned session thereof
need be specified in any written waiver of notice.
2.5 BUSINESS AT STOCKHOLDER MEETINGS. Unless otherwise determined by the
board of directors prior to a meeting of the stockholders, the officer
presiding at such meeting, determined in accordance with these by-laws, shall
determine the order of business and shall have the authority in his discretion
to regulate the conduct of such meeting, including, without limitation, to
impose restrictions on the persons (other than stockholders of the corporation
or their duly appointed proxies) who may attend such meeting, to regulate and
restrict the making of statements or asking of questions at such meeting and to
cause the removal from such meeting of any person who has disrupted or appears
likely to disrupt the proceedings at such meeting. At a meeting of the
stockholders, only such business shall be conducted as shall have been properly
brought before the meeting. To be properly brought before a meeting of
stockholders, business must be (a) specified in the notice of meeting (or any
supplement thereto) given as provided in these by-laws, (b) otherwise properly
brought before the meeting by or at the direction of a majority of the board of
directors then in office, or (c) in the case of an annual meeting of
stockholders, otherwise properly brought before such meeting by a stockholder.
For business to be properly brought before an annual meeting by a stockholder,
the stockholder must have given timely notice thereof in writing to the
secretary of the corporation and the stockholder must be a stockholder of
record at the time such notice is given. For the notice to be timely in the
case of
2
3
an annual meeting, such notice must be delivered to or mailed and received at
the principal executive offices of the corporation not less than 90 days prior
to the first anniversary of the date of the last annual meeting of
stockholders. A stockholder's notice to the secretary shall set forth as to
each matter the stockholder proposes to bring before the meeting (a) a brief
description of the business desired to be brought before the meeting and the
reasons for conducting such business at the meeting, (b) the name and address,
as they appear on the corporation's books, of the stockholder proposing such
business, (c) the class and number of shares of the corporation which are
beneficially owned by the stockholder, and (d) any material financial interest
of the stockholder in such business. The business desired to be brought before
the meeting by a stockholder shall be stated in the notice of such meeting or
any supplemental notice thereof. Notwithstanding anything in these by-laws to
the contrary, no business shall be conducted at any meeting except in
accordance with the procedures set forth in this Section 2.5. The chairman of
the meeting shall, if the facts warrant, determine and declare to the meeting
that business was not properly brought before the meeting and in accordance
with the provisions of this Section 2.5, including the specific basis for such
determination, and if he should so determine, any such business not properly
brought before the meeting shall not be transacted. Notwithstanding the
foregoing provisions of this Section 2.5, a stockholder shall also comply with
all applicable requirements of the Securities Exchange Act of 1934, as amended,
and any successor law and the rules and regulations thereunder with respect to
the matters set forth in this section.
2.6 QUORUM OF STOCKHOLDERS. At any meeting of the stockholders a quorum
as to any matter shall consist of a majority of the votes entitled to be cast
on the matter, except where a larger quorum is required by law, by the
certificate of incorporation or by these by-laws. Any meeting may be adjourned
from time to time by a majority of the votes properly cast upon the question,
whether or not a quorum is present. If a quorum is present at an original
meeting, a quorum need not be present at an adjourned session of that meeting.
2.7 ACTION BY VOTE. When a quorum is present at any meeting, a plurality
of the votes properly cast for election to any office shall elect to such
office and a majority of the votes properly cast upon any question other than
an election to an office shall decide the question, except when a larger vote
is required by law, by the certificate of incorporation or by these by-laws.
No ballot shall be required for any election unless requested by a stockholder
present or represented at the meeting and entitled to vote in the election.
2.8 NO ACTION WITHOUT A MEETING. Any action required or permitted to be
taken by the stockholders of the corporation must be effected at an annual or
special meeting of the stockholders of the corporation and may not be effected
by any consent in writing by such stockholders.
2.9 PROXY REPRESENTATION. Every stockholder may authorize another person
or persons to act for him by proxy in all matters in which a stockholder is
entitled to participate, whether by waiving notice of any meeting, or objecting
to or voting or participating at a meeting. Every proxy must be signed by the
stockholder or by his attorney in-fact. No proxy
3
4
shall be voted or acted upon after three years from its date unless such proxy
provides for a longer period. 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.
The authorization of a proxy may but need not be limited to specified action,
provided, however, that if a proxy limits its authorization to a meeting or
meetings of stockholders, unless otherwise specifically provided such proxy
shall entitle the holder thereof to vote at any adjourned session but shall not
be valid after the final adjournment thereof.
2.10 INSPECTORS. The directors or the person presiding at the meeting
may, but need not, appoint one or more inspectors of election and any
substitute inspectors to act at the meeting or any adjournment thereof. Each
inspector, before entering upon the discharge of his duties, shall take and
sign an oath faithfully to execute the duties of inspector at such meeting with
strict impartiality and according to the best of his ability. The inspectors,
if any, shall determine the number of shares of stock outstanding and the
voting power of each, the shares of stock represented at the meeting, the
existence of a quorum, the validity and effect of proxies, and shall receive
votes or ballots, hear and determine all challenges and questions arising in
connection with the right to vote, count and tabulate all votes or ballots,
determine the result, and do such acts as are proper to conduct the election or
vote with fairness to all stockholders. On request of the person presiding at
the meeting, the inspectors shall make a report in writing of any challenge,
question or matter determined by them and execute a certificate of any fact
found by them.
2.11 LIST OF STOCKHOLDERS. The secretary shall prepare and make, at least
ten days before every meeting of stockholders, a complete list of the
stockholders entitled to vote at such meeting, arranged in alphabetical order
and showing the address of each stockholder and the number of shares registered
in his name. The stock ledger shall be the only evidence as to who are
stockholders entitled to examine such list or to vote in person or by proxy at
such meeting.
Section 3. BOARD OF DIRECTORS
3.1 NUMBER AND TENURE. The number of directors which shall constitute
the whole board shall be not less than five nor more than twelve in number.
Within the foregoing limits, the board of directors shall determine the number
of directors and the number of directors may be increased at any time or from
time to time by the directors by vote of a majority of the directors then in
office.
Except as otherwise provided by law, by the certificate of incorporation
or by these by-laws, each director shall hold office until a successor is
elected and qualified, or until such director sooner dies, resigns, is removed
or replaced.
4
5
3.2 NOTICE OF STOCKHOLDER NOMINEES. Only persons who are nominated in
accordance with the procedures set forth in this Section 3.2 shall be eligible
for election as directors at an annual meeting of stockholders or at a special
meeting of stockholders called for the purpose of electing directors.
Nominations of persons for election to the board of directors of the
corporation may be made at an annual meeting of stockholders by or at the
direction of the board of directors or by any stockholder of the corporation
entitled to vote for the election of directors at such annual meeting who
complies with the notice procedures set forth in this Section and such
nominations, other than those made by or at the direction of the board of
directors, shall be made pursuant to timely notice in writing to the secretary
of the corporation. For the notice to be timely in the case of an annual
meeting of stockholders, a stockholder's notice shall be delivered to or mailed
and received at the principal executive offices of the corporation not less
than 90 days prior to the first anniversary of the date of the last annual
meeting of stockholders. A stockholder's notice shall set forth (a) as to each
person whom the stockholder proposes to nominate for election or re-election as
a director, (i) the name, age, business address and residence address of such
person, (ii) the principal occupation or employment of such person, (iii) the
class and number of shares of the corporation which are beneficially owned by
such person and (iv) any other information relating to such person that is
required to be disclosed in solicitations of proxies for election of directors,
or is otherwise required, in each case pursuant to Regulation 14A under the
Securities Exchange At of 1934, as amended or any successor regulation
(including without limitation such person's written consent to being named in
the proxy statement as a nominee and to serving as a director if elected); and
(b) as to the stockholder giving the notice (i) the name and address, as they
appear on the corporation's books, of such stockholder and (ii) the class and
number of shares of the corporation which are beneficially owned by such
stockholder. The information required by the preceding sentence with respect
to (i) the person or persons nominated for election to the board of directors,
and (ii) the stockholder or stockholders giving the notice and making such
nomination, shall be stated in the notice of the meeting or any supplemental
notice thereof. At the request of the board of directors any person nominated
by the board of directors for election as a director shall furnish to the
secretary of the corporation that information required to be set forth in a
stockholder's notice of nomination which pertain to the nominee. No person
shall be eligible for election as a director of the corporation unless
nominated in accordance with the procedures set forth in this Section. The
chairman of the meeting shall, if the facts warrant, determine and declare to
the meeting that a nomination was not made in accordance with the procedures
prescribed by the by-laws, including the specific basis for such determination,
and if he should so determine, the defective nomination shall be disregarded.
Notwithstanding the foregoing provisions of this Section, a stockholder shall
also comply with all applicable requirements of the Securities Exchange Act of
1934, as amended, or any successor law and the rules and regulations thereunder
with respect to the matters set forth in this Section.
3.3 POWERS. The business and affairs of the corporation shall be managed
by or under the direction of the board of directors who shall have and may
exercise all the powers of the corporation and do all such lawful acts and
things as are not by law, the certificate of incorporation or these by-laws
directed or required to be exercised or done by
5
6
the stockholders.
3.4 VACANCIES. Vacancies on the board of directors and any newly created
directorships resulting from any increase in the number of directors may be
filled by a majority of the directors then in office, although less than a
quorum or by a sole remaining director. Any director or directors so chosen
shall hold office until the next annual meeting of the stockholders and until
their successors shall be duly elected and shall qualify or until their earlier
death, or resignation, removal or replacement. The directors shall have and
may exercise all their powers notwithstanding the existence of one or more
vacancies in their number, subject to any requirements of law or of the
certificate of incorporation, or of these by-laws as to the number of directors
required for a quorum or for any vote or other actions.
3.5 COMMITTEES. Subject to Section 3.6, the board of directors may, by
vote of a majority of the whole board, (a) designate, change the membership of
or terminate the existence of any committee or committees, each committee to
consist of one or more of the directors; (b) designate one or more directors as
alternate members of any such committee who may replace any absent or
disqualified member at any meeting of the committee; and (c) determine the
extent to which each such committee shall have and may exercise the powers of
the board of directors in the management of the business and affairs of the
corporation, including the power to authorize the seal of the corporation to be
affixed to all papers which require it and the power and authority to declare
dividends or to authorize the issuance of stock; excepting, however, such
powers which by law, by the certificate of incorporation or by these by-laws
they are prohibited from so delegating. Except as the board of directors may
otherwise determine, any committee may make rules for the conduct of its
business, but unless otherwise provided by the board or such rules, its
business shall be conducted as nearly as may be in the same manner as is
provided by these by-laws for the conduct of business by the board of
directors. Each committee shall report to the board of directors upon request.
3.6 EXECUTIVE COMMITTEE. The board of directors shall, by vote of a
majority of the whole board, elect from its own number an executive committee,
to consist of not less than two members in addition to the chief executive
officer, and may from time to time designate or alter, within the limits
permitted by this Section 3.6, the duties and powers of such committee, or
change its membership.
The executive committee 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 to the fullest extent permitted by Section 141 of
the Delaware General Corporation Law, and may authorize the seal of the
corporation to be affixed to all papers which may require it, including the
power and authority to declare a dividend, to authorize the issuance of stock
and to adopt a certificate of ownership and merger. Each member of the
executive committee shall hold office until the first meeting of the board of
directors following the next annual meeting of the stockholders and until his
successor is elected and qualified, or until he sooner dies, resigns, is
removed, is replaced by change of membership, or becomes disqualified by
ceasing to be a
6
7
director. One-third of the members of the executive committee then in office,
but in no case less than two members, shall constitute a quorum for the
transaction of business, but any meeting may be adjourned from time to time by
a majority of the votes cast upon the question, whether or not a quorum is
present, and the meeting may be held as adjourned without further notice.
3.7 REGULAR MEETINGS. Regular meetings of the board of directors may be
held without call or notice at such places within or without the State of
Delaware and at such times as the board may from time to time determine,
provided that notice of the first regular meeting following any such
determination shall be given to absent directors. A regular meeting of the
directors may be held without call or notice immediately after and at the same
place as the annual meeting of stockholders.
3.8 SPECIAL MEETINGS. Special meetings of the board of directors may be
held at any time and at any place within or without the State of Delaware
designated in the notice of the meeting, when called by the chairman of the
board or by a majority of the directors then in office, reasonable notice
thereof being given to each director by the secretary or by the chairman.
3.9 NOTICE. It shall be reasonable and sufficient notice to a director
to send notice by mail at least two days or by telegram at least the day before
the meeting addressed to him at his usual or last known business or residence
address or to give notice to him in person or by telephone at least the day
before the meeting. Notice of a meeting need not be given to any director if a
written waiver or notice, executed by him before or after the meeting, is filed
with the records of the meeting, or to any director who attends the meeting
without protesting prior thereto or at its commencement the lack of notice to
him. Neither notice of a meeting nor a waiver of a notice need specify the
purposes of the meeting.
3.10 QUORUM. Except as may be otherwise provided by law, by the
certificate of incorporation or by these by-laws, at any meeting of the
directors a majority of the directors then in office shall constitute a quorum.
Any meeting may be adjourned from time to time by a majority of the votes cast
upon the question, whether or not a quorum is present, and the meeting may be
held as adjourned without further notice.
3.11 ACTION BY VOTE. Except as may be otherwise provided by law, by the
certificate of incorporation or by these by-laws, when a quorum is present at
any meeting the vote of a majority of the directors present shall be the act of
the board of directors.
3.12 ACTION WITHOUT A MEETING. Any action required or permitted to be
taken at any meeting of the board of directors or a committee thereof may be
taken without a meeting if all the members of the board or of such committee,
as the case may be, consent thereto in writing, and such writing or writings
are filed with the records of the meetings of the board or of such committee.
Such consent shall be treated for all purposes as the act of the board or of
7
8
such committee, as the case may be.
3.13 PARTICIPATION-IN MEETINGS BY CONFERENCE TELEPHONE. Members of the
board of directors, or any committee designated by such board, may participate
in a meetings of such board or committee by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other or by any other means permitted by law. Such
participation shall constitute presence in person at such meeting.
3.14 COMPENSATION. In the discretion of the board of directors, each
director may be paid such fees for his services as director and as a committee
member and be reimbursed for his reasonable expenses incurred in the
performance of his duties as director and as a committee member as the board of
directors from time to time may determine. Nothing contained in this section
shall be construed to preclude any director from serving the corporation in any
other capacity and receiving reasonable compensation therefor.
3.15 INTERESTED DIRECTORS AND OFFICERS.
(a) No contract or transaction between the corporation and one or more of
its directors or officers, or between the corporation and any other
corporation, partnership, association, or other organization in which one or
more of the corporation's 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 committee thereof which authorizes the contract or
transaction, or solely because his or their votes are counted for such purpose,
if:
(1) The material facts as to his 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 votes of a majority of the
disinterested directors, even though the disinterested directors be less than a
quorum; or
(2) The material facts as to his 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
(3) The contract or transaction is fair as to the corporation
as of the time it is authorized, approved or ratified, by the board of
directors, a committee thereof, or the stockholders.
(b) 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.
8
9
Section 4. OFFICERS AND AGENTS
4.1 ENUMERATION; QUALIFICATION. The board of directors shall elect the
officers of the corporation, which shall include a President and a Secretary,
and may include, by election or appointment, a Chairman of the Board, a Vice
Chairman of the Board, one or more Vice-Presidents (any one or more of whom may
be given an additional designation of rank or function), a Treasurer and such
assistant secretaries, such assistant treasurers and such other officers as the
board of directors may from time to time deem proper. The corporation may also
have such agents, if any, as the board of directors from time to time may in
its discretion choose. Any officer may be but none need be a director or
stockholder. Each officer shall have such powers and duties as may be
prescribed by these By-Laws and as may be assigned by the board of directors.
Any two or more offices may be held by the same person except the offices of
President and Secretary. Any officer may be required by the board of directors
to secure the faithful performance of his duties to the corporation by giving
bond in such amount and with such sureties or otherwise as the board of
directors may determine.
4.2 TERM OF OFFICE AND REMUNERATION. The term of office of all officers
shall be one year and until their respective successors have been elected and
qualified unless a shorter period shall have been specified by the terms of any
officer's election or appointment. The remuneration of all officers of the
corporation may be fixed by the board of directors or in such manner as the
board of directors shall provide.
4.3 CHAIRMAN OF THE BOARD. The Chairman of the Board, if there be one,
shall preside at all meetings of the board of directors and the stockholders of
the corporation, and shall have such other powers and duties as may from time
to time be assigned by the board of directors.
4.4 VICE CHAIRMAN OF THE BOARD. The Vice Chairman of the Board, if there
be one, shall, in the absence of the Chairman of the Board, preside at all
meetings of the board of directors and shall have such other powers and duties
as may from time to time be assigned by the board of directors.
4.5 PRESIDENT. The President shall have general management and
supervision of the property, business and affairs of the corporation and over
its other officers; may appoint and remove assistant officers and other agents
and employees, other than the Chairman of the Board and Vice Chairman of the
Board, if there be one; and may execute and deliver in the name of the
corporation powers of attorney, contracts, bonds and other obligations and
instruments, in each case subject to the control of the board of directors.
4.6 VICE-PRESIDENT. A Vice-President shall have such duties and powers as
shall be
9
10
set forth in these by-laws or as shall be designated from time to time by the
board of directors.
4.7 TREASURER. Unless the board of directors otherwise specifies, the
treasurer shall be the chief financial officer of the corporation and shall be
in charge of its funds and valuable papers, and shall have such other duties
and powers as may be designated from time to time by the board of directors.
If no controller is elected, the treasurer shall, unless the board of directors
otherwise specifies, also have the duties and powers of the controller.
4.8 CONTROLLER. If a controller is elected, he shall, unless the board
of directors otherwise specifies, be the chief accounting officer of the
corporation and be in charge of its books of account and accounting records,
and of its accounting procedures. He shall have such other duties and powers
as may be designated from time to time by the board of directors or the
treasurer.
4.9 SECRETARY. The secretary shall record all proceedings of the
stockholders, of the board of directors and of committees of the board of
directors in a book or series of books to be kept therefor and shall file
therein all actions by written consent of directors. In the absence of the
secretary from any meeting, an assistant secretary, or if there be none or he
is absent, a temporary secretary chosen at the meeting, shall record the
proceedings thereof. Unless a transfer agent has been appointed, the secretary
shall keep or cause to be kept the stock and transfer records of the
corporation, which shall contain the names and record addresses of all
stockholders and the number of shares registered in the name of each
stockholder. He shall have such other duties and powers as may from time to
time be designated by the board of directors.
4.10 ASSISTANT OFFICERS. Any assistant officer shall have such powers and
duties of the officer such assistant officer assists as such officer or the
board of directors shall from time to time prescribe.
Section 5. RESIGNATIONS AND REMOVALS
5.1 Any director or officer may resign at any time by delivering his
resignation in writing to the chairman of the board, the president, or the
secretary or to a meeting of the board of directors. Such resignation shall be
effective upon receipt unless specified to be effective at some other time, and
without in either case the necessity of its being accepted unless the
resignation shall so state. A director (including persons elected by directors
to fill vacancies in the board) may be removed from office with or without
cause by the vote of the holders of a majority of the shares issued and
outstanding and entitled to vote in the election of directors. The board of
directors may at any time remove any officer either with or without cause. The
board of directors may at any time terminate or modify the authority of any
agent.
Section 6. VACANCIES
10
11
6.1 If the office of any officer becomes vacant, the directors may elect
a successor by vote of a majority of the directors then in office. Each such
successor shall hold office for the unexpired term, and until his successor is
chosen and qualified or in each case until he sooner dies, resigns, is removed,
is replaced or becomes disqualified. Any vacancy of a directorship shall be
filled as specified in Section 3.4 of these by-laws.
Section 7. CAPITAL STOCK
7.1 STOCK CERTIFICATES. Each stockholder shall be entitled to a
certificate stating the number and the class and the designation of the series,
if any, of the shares held by him, in such form as shall, in conformity to law,
the certificate of incorporation and the by-laws, be prescribed from time to
time by the board of directors. Such certificate shall be signed by the
chairman or vice chairman of the board, if any, or the president or a vice
president and by the treasurer or an assistant treasurer or by the secretary or
an assistant secretary. Any of or all the signatures on the certificate may be
a facsimile. In case an officer, transfer agent, or registrar who has signed
or whose facsimile signature has been placed on such certificate shall have
ceased to be such officer, transfer agent, or registrar before such 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 time of its issue.
7.2 LOSS OF CERTIFICATES. In the case of the alleged theft, loss,
destruction or mutilation of a certificate of stock, a duplicate certificate
may be issued in place thereof, upon such terms, including receipt of a bond
sufficient to indemnify the corporation against any claim on account thereof,
as the board of directors may prescribe.
Section 8. TRANSFER OF SHARES OF STOCK
8.1 TRANSFER ON BOOKS. Subject to the restrictions, if any, stated or
noted on the stock certificate, shares of stock may be transferred on the books
of the corporation by the surrender to the corporation or its transfer agent of
the certificate therefor properly endorsed or accompanied by a written
assignment and power of attorney properly executed, with necessary transfer
stamps affixed, and with such proof of the authenticity of signature as the
board of directors or the transfer agent of the corporation may reasonably
require. Except as may be otherwise required by law, by the certificate of
incorporation or by these by-laws, the corporation shall be entitled to treat
the record holder of stock as shown on its books as the owner of such stock for
all purposes, including the payment of dividends and the right to receive
notice and to vote or to give any consent with respect thereto and to be held
liable for such calls and assessments, if any, as may lawfully be made thereon,
regardless of any transfer, pledge or other disposition of such stock until the
shares have been properly transferred on the books of the corporation.
It shall be the duty of each stockholder to notify the corporation of
his post office address.
11
12
8.2 RECORD DATE AND CLOSING TRANSFER BOOKS. 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 nor less than ten days before
the date of such meeting. If no such record date is fixed by the board of
directors, the record date for determining the 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
receive payment of any dividend or other distribution or allotment of any
rights or 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 days prior to such payment, exercise or other
action. If no such 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.
Section 9. CORPORATE SEAL
9.1 Subject to alteration by the directors, the seal of the corporation
shall consist of a flat-faced circular die with the word "Delaware" and the
name of the corporation cut or engraved thereon, together with such other
words, dates or images as may be approved from time to time by the directors.
Section 10. EXECUTION OF PAPERS
10.1 Except as the board of directors may generally or in particular cases
authorize the execution thereof in some other manner, all deeds, leases,
transfers, contracts, bonds, notes, checks, drafts or other obligations made,
accepted or endorsed by the corporation shall be signed by the chairman of the
board, the president, any vice president, the treasurer or the secretary.
Section 11. FISCAL YEAR
12
13
11.1 Except as from time to time otherwise provided by the board of
directors, the fiscal year of the corporation shall end on the last day of
September in each year.
Section 12. AMENDMENTS
12.1 These by-laws may be altered, amended or repealed by (i) the
affirmative vote of the holders of a majority of the voting power of the then
outstanding shares of stock of all classes and series of this corporation
entitled to vote generally in the election of directors, voting together as a
single class or (ii) a vote of the majority of the directors then in office, at
any annual, regular or special stockholders or directors meeting, called for
that purpose, the notice of which shall specify the subject matter of the
proposed new by-law or the alteration, amendment or repeal of an existing
by-law or the articles to be affected thereby. Any by-law, whether made,
altered, amended or repealed by the stockholders or directors, may be repealed,
amended, further amended or reinstated, as the case may be, by either the
stockholders or the directors as aforesaid.
*************
As adopted by the Board of Directors: August 3, 1989
As amended by the Board of Directors: March 20, 1990
As amended by the Board of Directors: January 24, 1996
13