EXHIBIT 3.03
WABASH NATIONAL CORPORATION
AMENDED AND RESTATED BYLAWS
ADOPTED
AS OF
____________________, 2001
TABLE OF CONTENTS
Page
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1. OFFICES....................................................................... 1
1.1. Registered Office...................................................... 1
1.2. Other Offices.......................................................... 1
2. MEETINGS OF STOCKHOLDERS...................................................... 1
2.1. Place of Meetings...................................................... 1
2.2. Annual Meetings........................................................ 1
2.3. Special Meetings....................................................... 2
2.4. Notice of Meetings..................................................... 2
2.5. Waivers of Notice...................................................... 2
2.6. Notice of Business..................................................... 3
2.6.1. Annual Meeting.................................................. 3
2.6.2. Notice Procedures............................................... 3
2.6.3. Public Announcement............................................. 5
2.7. List of Stockholders................................................... 5
2.8. Quorum at Meetings..................................................... 5
2.9. Voting and Proxies..................................................... 6
2.10. Required Vote.......................................................... 7
2.11. Action Without a Meeting............................................... 7
3. DIRECTORS..................................................................... 8
3.1. Powers................................................................. 8
3.2. Number and Election.................................................... 8
3.3. Nomination of Directors................................................ 8
3.3.1. Annual Meetings................................................. 8
3.3.2. Special Meetings of Stockholders................................ 11
3.3.3. Public Announcement............................................. 11
3.4. Vacancies.............................................................. 12
3.5. Meetings............................................................... 12
3.5.1. Regular Meetings................................................ 12
3.5.2. Special Meetings................................................ 12
3.5.3. Telephone Meetings.............................................. 13
3.5.4. Action Without Meeting.......................................... 13
3.5.5. Waiver of Notice of Meeting..................................... 13
3.6. Quorum and Vote at Meetings............................................ 13
3.7. Committees of Directors................................................ 13
3.8. Compensation of Directors.............................................. 14
4. OFFICERS...................................................................... 14
4.1. Positions.............................................................. 14
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4.2. Chairperson............................................................ 15
4.3. President.............................................................. 15
4.4. Vice President......................................................... 15
4.5. Secretary.............................................................. 16
4.6. Assistant Secretary.................................................... 16
4.7. Treasurer.............................................................. 16
4.8. Assistant Treasurer.................................................... 16
4.9. Term of Office......................................................... 16
4.10. Compensation........................................................... 17
4.11. Fidelity Bonds......................................................... 17
5. CAPITAL STOCK................................................................. 17
5.1. Certificates of Stock; Uncertificated Shares........................... 17
5.2. Lost Certificates...................................................... 17
5.3. Record Date............................................................ 18
5.3.1. Actions by Stockholders......................................... 18
5.3.2. Payments........................................................ 19
5.4. Stockholders of Record................................................. 19
6. INDEMNIFICATION; INSURANCE.................................................... 19
6.1. Authorization of Indemnification....................................... 19
6.2. Right of Claimant to Bring Action Against the Corporation.............. 20
6.3. Non-exclusivity........................................................ 21
6.4. Survival of Indemnification............................................ 21
6.5. Insurance.............................................................. 21
7. GENERAL PROVISIONS............................................................ 22
7.1. Inspection of Books and Records........................................ 22
7.2. Dividends.............................................................. 22
7.3. Reserves............................................................... 22
7.4. Execution of Instruments............................................... 23
7.5. Fiscal Year............................................................ 23
7.6. Seal................................................................... 23
7.7. Amendment.............................................................. 23
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AMENDED AND RESTATED
BYLAWS
OF
WABASH NATIONAL CORPORATION
1. OFFICES
1.1. REGISTERED OFFICE
The registered office of the Corporation shall be in Wilmington,
Delaware, and the registered agent in charge thereof shall be [Corporation
Service Company].
1.2. OTHER OFFICES
The Corporation may also have offices at such other places, both
within and without the State of Delaware, as the Board of Directors may from
time to time determine or as may be necessary or useful in connection with the
business of the Corporation.
2. MEETINGS OF STOCKHOLDERS
2.1. PLACE OF MEETINGS
All meetings of the stockholders shall be held at such place as may
be fixed from time to time by the Board of Directors, the Chairperson or the
President. Notwithstanding the foregoing, the Board of Directors may determine
that the meeting shall not be held at any place, but may instead be held by
means of remote communication.
2.2. ANNUAL MEETINGS
Unless directors are elected by written consent in lieu of an annual
meeting, the Corporation shall hold annual meetings of stockholders, on such
date
and at such time as shall be designated from time to time by the Board of
Directors, the Chairperson or the President, at which stockholders shall elect a
Board of Directors and transact such other business as may properly be brought
before the meeting. If a written consent electing directors is less than
unanimous, such action by written consent may be in lieu of holding an annual
meeting only if all of the directorships to which directors could be elected at
an annual meeting held at the effective time of such action are vacant and are
filled by such action.
2.3. SPECIAL MEETINGS
Special meetings of the stockholders, for any purpose or purposes,
unless otherwise prescribed by statute, may be called by the Board of Directors,
the Chairperson or the President. Business transacted at any special meeting of
stockholders shall be limited to the purposes stated in the notice (except to
the extent that such notice is waived or is not required as provided in the
Delaware General Corporation Law or these Bylaws).
2.4. NOTICE OF MEETINGS
Notice of any meeting of stockholders, stating the place, if any,
date and hour of the meeting, the means of remote communication, if any, by
which stockholders and proxyholders may be deemed to be present in person and
vote at such meeting, and (if it is a special meeting) the purpose or purposes
for which the meeting is called, shall be given to each stockholder entitled to
vote at such meeting not less than ten nor more than sixty days before the date
of the meeting (except to the extent that such notice is waived or is not
required as provided in the General Corporation Law of the State of Delaware
(the "DELAWARE GENERAL CORPORATION LAW") or these Bylaws). Such notice shall be
given in accordance with, and shall be deemed effective as set forth in,
Sections 222 and 232 (or any successor section or sections) of the Delaware
General Corporation Law.
2.5. WAIVERS OF NOTICE
Whenever the giving of any notice is required by statute, the
Certificate of Incorporation or these Bylaws, a written waiver thereof signed by
the person or persons entitled to said notice, or a waiver thereof by electronic
transmission by the person entitled to said notice, delivered to the
Corporation, whether before or after the event as to which such notice is
required, shall be deemed equivalent to notice. Attendance of a stockholder at a
meeting shall constitute a waiver of notice (1) of such meeting, except when the
stockholder at the beginning of the meeting objects to holding the meeting or
transacting business at
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the meeting, and (2) (if it is a special meeting) of consideration of a
particular matter at the meeting that is not within the purpose or purposes
described in the meeting notice, unless the stockholder objects to considering
the matter at the beginning of the meeting.
2.6. NOTICE OF BUSINESS
2.6.1. ANNUAL MEETING
At an annual meeting of the stockholders, only such business shall
be conducted as shall have been brought before the meeting (i) pursuant to the
Corporation's notice of meeting (or any supplement thereto), (ii) by or at the
direction of the Board of Directors or (iii) by any stockholder of the
Corporation who is a stockholder of record at the time of giving of the notice
provided for in this SECTION 2.6, who shall be entitled to vote at such meeting
and who complies with the notice procedures set forth in this SECTION 2.6.
2.6.2. NOTICE PROCEDURES
(a) 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. To be timely, a stockholder's notice shall
be delivered to or mailed and received at the principal executive offices of the
Corporation not later than the close of business on the ninetieth day nor
earlier than the close of business on the one hundred twentieth day prior to the
first anniversary of the preceding year's annual meeting; provided, however,
that in the event that the date of the annual meeting is more than thirty days
before or more than thirty days after such anniversary date, notice by the
stockholder to be timely must be so delivered not earlier than the close of
business on the one hundred twentieth day prior to such annual meeting and not
later than the close of business on the later of the ninetieth day prior to such
annual meeting or the tenth day following the day on which public disclosure of
the date of the meeting was first made. In no event shall the public
announcement of an adjournment or postponement of an annual meeting commence a
new time period (or extend any time period) for the giving of a stockholder's
notice as described above.
(b) A stockholder's notice to the Secretary shall set forth (A) as
to each matter the stockholder proposes to bring before the meeting (i) a brief
description of the business desired to be brought before the meeting and the
reasons for conducting such business at the meeting, (ii) the text of the
proposal or business (including the text of any resolutions proposed for
consideration and in the event that such business includes a proposal to amend
the Bylaws of the Corporation, the
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language of the proposed amendment), (iii) any material interest in such
business of such stockholder and such beneficial owner, if any, on whose behalf
the proposal is made, and (iv) any other information relating to such business
that is required to be disclosed in a proxy statement or other filings required
to be made in connection with solicitations of proxies in support of such
proposal or is otherwise required pursuant to Regulation 14A of the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT") and (B) as to the
stockholder giving the notice and the beneficial owner, if any, on whose behalf
the proposal is made (i) the name and address of such stockholder, as they
appear on the Corporation's books, and of such beneficial owner, (ii) the class
or series and number of shares of the Corporation which are owned beneficially
and of record by such stockholder and by such beneficial owner, (iii) a
description of all arrangements or understandings between such stockholder
and/or beneficial owner and any other person or persons (including their names)
pursuant to which the proposal(s) are to be made by such stockholder, (iv) a
representation that such stockholder is a holder of record of stock of the
Corporation entitled to vote at such meeting and intends to appear in person or
by proxy at the meeting to propose the items of business set forth in its
notice, (v) a representation whether the stockholder or the beneficial owner, if
any, intends or is a part of a group which intends (a) to deliver a proxy
statement and/or form of proxy to holders of at least the percentage of the
Corporation's outstanding capital stock required to approve or adopt the
proposal and/or (b) otherwise to solicit proxies from stockholders in support of
such proposal, and (vi) any other information relating to such stockholder or
beneficial owner that would be required to be disclosed in a proxy statement or
other filings required to be made in connection with solicitations of proxies in
support of such proposal pursuant to Regulation 14A under the Exchange Act.
(c) Notwithstanding anything in the Bylaws to the contrary, no
business shall be conducted at an annual stockholder meeting except in
accordance with the procedures set forth in this SECTION 2.6. The timing
requirements for advance notice of a proposal set forth in this SECTION 2.6
shall be deemed satisfied by a stockholder if the stockholder has notified the
Corporation of his or her intention to present a proposal at an annual meeting
in compliance with Rule 14a-8 (or any successor thereof) promulgated under the
Exchange Act and such stockholder's proposal has been included in a proxy
statement that has been prepared by the Corporation to solicit proxies for such
annual meeting. Except as otherwise provided by law, the Chair of the meeting
has the power and authority to and 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 these Bylaws, and if he should so
determine, he shall so declare to the meeting and any such business not properly
brought before the meeting shall not be
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transacted. Notwithstanding the foregoing provisions of this SECTION 2.6, a
stockholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations promulgated thereunder with respect to the
matters set forth in this Section. Nothing in this SECTION 2.6 shall be deemed
to affect any rights of stockholders to request inclusion of proposals in the
Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act.
2.6.3. PUBLIC ANNOUNCEMENT
For purposes of this Section 2.6, "public announcement" shall
include disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service or in a document publicly
filed by the Corporation with the Securities and Exchange Commission pursuant to
Section 13, 14 or 15(d) of the Exchange Act.
2.7. LIST OF STOCKHOLDERS
After the record date for a meeting of stockholders has been fixed,
at least ten days before such meeting, the officer who has charge of the stock
ledger of the Corporation shall make a list of all stockholders entitled to vote
at the meeting, arranged in alphabetical order and showing the address of each
stockholder (but not the electronic mail address or other electronic contact
information, unless the Board of Directors so directs) 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 for a
period of at least ten days prior to the meeting: (1) on a reasonably accessible
electronic network, provided that the information required to gain access to
such list is provided with the notice of the meeting, or (2) during ordinary
business hours, at the principle place of business of the Corporation. If the
meeting is to be held at a place, then such list shall also, for the duration of
the meeting, be produced and kept open to the examination of any stockholder who
is present at the time and place of the meeting. If the meeting is to be held
solely by means of remote communication, then such list shall also be open to
the examination of any stockholder during the whole time of the meeting on
reasonably accessible electronic network, and the information required to access
such list shall be provided with the notice of the meeting.
2.8. QUORUM AT MEETINGS
Stockholders may take action on a matter at a meeting only if a
quorum exists with respect to that matter. Except as otherwise provided by
statute or by the Certificate of Incorporation, the holders of a majority of the
shares entitled to vote at the meeting, and who are present in person or
represented by proxy, shall
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constitute a quorum at all meetings of the stockholders for the transaction of
business. Where a separate vote by a class or series or classes or series is
required, a majority of the outstanding shares of such class or series or
classes or series, present in person or represented by proxy, shall constitute a
quorum entitled to take action with respect to that vote on that matter. Once a
share is represented for any purpose at a meeting (other than solely to object
(1) to holding the meeting or transacting business at the meeting, or (2) (if it
is a special meeting) to consideration of a particular matter at the meeting
that is not within the purpose or purposes described in the meeting notice), it
is deemed present for quorum purposes for the remainder of the meeting and for
any adjournment of that meeting unless a new record date is or must be set for
the adjourned meeting. The holders of a majority of the voting shares
represented at a meeting, whether or not a quorum is present, may adjourn such
meeting from time to time.
2.9. VOTING AND PROXIES
Unless otherwise provided in the Delaware General Corporation Law or
in the Corporation's Certificate of Incorporation, and subject to the other
provisions of these Bylaws, each stockholder shall be entitled to one vote on
each matter, in person or by proxy, for each share of the Corporation's capital
stock that has voting power and that is held by such stockholder. No proxy shall
be voted or acted upon after three years from its date, unless the proxy
provides for a longer period. A duly executed appointment of proxy shall be
irrevocable if the appointment form 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. If authorized by the Board of Directors, and subject to such
guidelines as the Board of Directors may adopt, stockholders and proxyholders
not physically present at a meeting of stockholders may, by means of remote
communication, participate in a meeting of stockholders and be deemed present in
person and vote at such meeting whether such meeting is held at a designated
place or solely by means of remote communication, provided that (1) the
Corporation implements reasonable measures to verify that each person deemed
present and permitted to vote at the meeting by means of remote communication is
a stockholder or proxyholder, (2) the Corporation implements reasonable measures
to provide such stockholders and proxyholders a reasonable opportunity to
participate in the meeting and to vote on matters submitted to the stockholders,
including an opportunity to read or hear the proceedings of the meeting
substantially concurrently with such proceedings, and (3) if any stockholder or
proxyholder votes or takes other action at the meeting by means of remote
communication, a record of such vote or other action is maintained by the
Corporation.
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2.10. REQUIRED VOTE
When a quorum is present at any meeting of stockholders, all matters
shall be determined, adopted and approved by the affirmative vote (which need
not be by ballot) of the holders of a majority of the shares present in person
or represented by proxy at the meeting and entitled to vote with respect to the
matter, unless the proposed action is one upon which, by express provision of
statutes or of the Certificate of Incorporation, a different vote is specified
and required, in which case such express provision shall govern and control with
respect to that vote on that matter. Where a separate vote by a class or classes
is required, the affirmative vote of the holders of a majority of the shares of
such class or classes present in person or represented by proxy at the meeting
shall be the act of such class. Notwithstanding the foregoing, directors shall
be elected by a plurality of the votes of the shares present in person or
represented by proxy at the meeting and entitled to vote on the election of
directors.
2.11. ACTION WITHOUT A MEETING
Any action required or permitted to be taken at a stockholders'
meeting may be taken without a meeting, without prior notice and without a vote,
if the action is taken by persons who would be entitled to vote at a meeting and
who hold shares having voting power equal to not less than the minimum number of
votes that would be necessary to authorize or take the action at a meeting at
which all shares entitled to vote were present and voted. The action must be
evidenced by one or more written consents describing the action taken, signed by
the stockholders entitled to take action without a meeting, and delivered to the
Corporation in the manner prescribed by the Delaware General Corporation Law for
inclusion in the minute book. No consent shall be effective to take the
corporate action specified unless the number of consents required to take such
action are delivered to the Corporation within sixty days of the delivery of the
earliest-dated consent. A telegram, cablegram or other electronic transmission
consenting to such action and transmitted by a stockholder or proxyholder, or by
a person or persons authorized to act for a stockholder or proxyholder, shall be
deemed to be written, signed and dated for the purposes of this SECTION 2.11,
provided that any such telegram, cablegram or other electronic transmission sets
forth or is delivered with information from which the Corporation can determine
(1) that the telegram, cablegram or other electronic transmission was
transmitted by the stockholder or proxyholder or by a person or persons
authorized to act for the stockholder or proxyholder and (2) the date on which
such stockholder or proxyholder or authorized person or persons transmitted such
telegram, cablegram or electronic
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transmission. The date on which such telegram, cablegram or electronic
transmission is transmitted shall be deemed to be the date on which such consent
was signed. No consent given by telegram, cablegram or other electronic
transmission shall be deemed to have been delivered until such consent is
delivered to the Corporation in accordance with Section 228(d)(1) of the
Delaware General Corporation Law. Written notice of the action taken shall be
given in accordance with the Delaware General Corporation Law to all
stockholders who do not participate in taking the action who would have been
entitled to notice if such action had been taken at a meeting having a record
date on the date that written consents signed by a sufficient number of holders
to take the action were delivered to the Corporation.
3. DIRECTORS
3.1. POWERS
The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors, which may exercise all such
powers of the Corporation and do all such lawful acts and things, subject to any
limitation set forth in the Certificate of Incorporation or as otherwise may be
provided in the Delaware General Corporation Law.
3.2. NUMBER AND ELECTION
The number of directors which shall constitute the whole board shall
not be fewer than three nor more than twelve. Thereafter, within the limits
above specified, the number of directors shall be determined by resolution of
the Board of Directors.
3.3. NOMINATION OF DIRECTORS
The directors shall be elected at the annual meeting of the
stockholders, except as provided in SECTION 3.4 hereof, and each director
elected shall hold office until such director's successor is elected and
qualified or until the director's earlier death, resignation or removal.
Directors need not be stockholders. Only persons who are nominated in accordance
with the procedures set forth in the Bylaws shall be eligible to serve as
directors.
3.3.1. ANNUAL MEETINGS.
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(a) Nominations of persons for election to the Board of Directors
may be made at an annual meeting of stockholders only (1) pursuant to the
Corporation's notice of meeting (or any supplement thereto), (2) by or at the
direction of the Board of Directors or (3) by any stockholder of the Corporation
who is a stockholder of record at the time of giving of notice provided for in
this SECTION 3.3.1, who shall be entitled to vote for the election of directors
at the meeting and who complies with the notice procedures set forth in this
SECTION 3.3.1.
(b) (1) 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. To be timely, a stockholder's
notice shall be delivered to or mailed and received at the principal executive
offices of the Corporation not later than the close of business on the ninetieth
day nor earlier than the close of business on the one hundred twentieth day
prior to the first anniversary of the preceding year's annual meeting; provided,
however, that in the event that the date of the annual meeting is more than
thirty days before or more than thirty days after such anniversary, notice by
the stockholder to be timely must be so delivered not earlier than the close of
business on the one hundred twentieth day prior to such annual meeting and not
later than the close of business on the later of the ninetieth day prior to such
annual meeting or the tenth day following the day on which public disclosure of
the date of the meeting was first made. In no event shall the public
announcement of an adjournment or postponement of an annual meeting commence a
new time period (or extend any time period) for the giving of a stockholder's
notice as described above.
(2) Such stockholder's notice shall set forth (a) as to each person
whom the stockholder proposes to nominate for election or reelection as a
director (i) the name, age, business address and residence address of the
person, (ii) the principal occupation or employment of the person, (iii) the
class or series and number of shares of capital stock of the Corporation which
are beneficially owned by the 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 Exchange Act (including 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 and the beneficial
owner, if any, on whose behalf the nomination is made (i) the name and address
of such stockholder, as they appear on the Corporation's books, and of such
beneficial owner, (ii) the class or series and number of shares of the
Corporation which are owned beneficially and of record by such stockholder and
by such beneficial owner, (iii) a description of all arrangements or
understandings between such stockholder and/or beneficial owner and each
proposed nominee and
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any other person or persons (including their names) pursuant to which the
nomination(s) are to be made by such stockholder, (iv) a representation that
such stockholder is a holder of record of stock of the Corporation entitled to
vote at such meeting and intends to appear in person or by proxy at the meeting
to nominate the person named in its notice, (v) a representation whether the
stockholder or the beneficial owner, if any, intends or is a part of a group
which intends (a) to deliver a proxy statement and/or form of proxy to holders
of at least the percentage of the Corporation's outstanding capital stock
required to elect the nominee and/or (b) otherwise to solicit proxies from
stockholders in support of such nomination, and (vi) any other information
relating to such stockholder or beneficial owner that would be required to be
disclosed in a proxy statement or other filings required to be made in
connection with solicitations of proxies for election of directors pursuant to
Regulation 14A under the Exchange Act. 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 pertains to the nominee, or
any other information as the Board of Directors may reasonably require to
determine the eligibility of such proposed nominee to serve as a director of the
Corporation.
(3) No person shall be eligible to serve as a director of the
Corporation unless nominated in accordance with the procedures set forth in this
Bylaw and unless qualified under the other provisions of these Bylaws. Except as
otherwise provided by law, the Chair of the meeting has the power and authority
to and 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
Bylaws, and if he should so determine, he shall so declare to the meeting and
the defective nomination shall be disregarded. Notwithstanding the foregoing
provisions of this SECTION 3.3, if the stockholder (or a qualified
representative of the stockholder) does not appear at the meeting of
stockholders of the Corporation to present a nomination, such nomination shall
be disregarded, notwithstanding that proxies in respect of such vote may have
been received by the Corporation. Notwithstanding the foregoing provisions of
this SECTION 3.3, a stockholder shall also comply with all applicable
requirements of the Exchange Act and the rules and regulations promulgated
thereunder with respect to the matters set forth in this SECTION 3.3. Nothing in
this SECTION 3.3 shall be deemed to affect any rights of the holders of any
series of preferred stock to elect directors pursuant to any applicable
provisions of the Certificate of Incorporation.
(c) Notwithstanding anything in the second sentence of paragraph (b)
of this SECTION 3.3.1 to the contrary, in the event that the number of directors
to be elected to the Board at an annual meeting is increased and there is no
public
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announcement by the Corporation naming the nominees for the additional
directorships at least one hundred days prior to the first anniversary of the
preceding year's annual meeting, a stockholder's notice required by this SECTION
3.3 shall also be considered timely, but only with respect to nominees for the
additional directorships, if it shall be delivered to the Secretary at the
principal executive offices of the Corporation not later than the close of
business on the tenth day following the day on which such public announcement is
first made by the Corporation.
3.3.2. SPECIAL MEETINGS OF STOCKHOLDERS.
Nominations of persons for election to the Board of Directors may be
made at a special meeting of stockholders at which directors are to be elected
pursuant to the Corporation's notice of meeting (1) by or at the direction of
the Board of Directors or (2) provided that the Board of Directors has
determined that directors shall be elected at such meeting, by any stockholder
of the Corporation who is a stockholder of record at the time the notice
provided for in this SECTION 3.3.2 is delivered to the Secretary of the
Corporation, who is entitled to vote at the meeting and upon such election and
who complied with the notice procedures set forth in this SECTION 3.3.2. In the
event the Corporation calls a special meeting of stockholders for the purpose of
electing one or more directors to the Board of Directors, any such stockholder
entitled to vote in such election of directors may nominate a person or persons
(as the case may be) for election to such position(s) as specified in the
Corporation's notice of meeting, if the stockholder's notice required by SECTION
3.3.1(B) shall be delivered to the Secretary at the principal executive offices
of the Corporation not earlier than the close of business on the one hundred
twentieth day prior to such special meeting and not later than the close of
business on the later of the ninetieth day prior to such special meeting or the
tenth day following the day on which public announcement is first made of the
date of the special meeting and of the nominees proposed by the Board of
Directors to be elected at such meeting. In no event shall the public
announcement of an adjournment or postponement of a special meeting commence a
new time period (or extend any time period) for the giving of a stockholder's
notice as described above.
3.3.3. PUBLIC ANNOUNCEMENT
For purposes of this SECTION 3.3, "public announcement" shall
include disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service or in a document publicly
filed by the Corporation with the Securities and Exchange Commission pursuant to
Section 13, 14 or 15(d) of the Exchange Act.
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3.4. VACANCIES
Vacancies and newly created directorships resulting from any
increase in the authorized number of directors elected by all of the
stockholders having the right to vote as a single class may be filled by the
affirmative vote of a majority of the directors then in office, although fewer
than a quorum, or by a sole remaining director. Whenever the holders of any
class or classes of stock or series thereof are entitled to elect one or more
directors by the provisions of the Certificate of Incorporation, vacancies and
newly created directorships of such class or classes or series may be filled by
the affirmative vote of a majority of the directors elected by such class or
classes or series thereof then in office, or by a sole remaining director so
elected. Each director so chosen shall hold office until the next election of
directors of the class to which such director was appointed, and until such
director's successor is elected and qualified, or until the director's earlier
death, resignation or removal. In the event that one or more directors resign
from the Board, effective at a future date, a majority of the directors then in
office, including those who have so resigned, shall have power to fill such
vacancy or vacancies, the vote thereon to take effect when such resignation or
resignations shall become effective, and each director so chosen shall hold
office until the next election of directors, and until such director's successor
is elected and qualified, or until the director's earlier death, resignation or
removal.
3.5. MEETINGS
3.5.1. REGULAR MEETINGS
Regular meetings of the Board of Directors may be held without
notice at such time and at such place as shall from time to time be determined
by the Board of Directors.
3.5.2. SPECIAL MEETINGS
Special meetings of the Board may be called by the Chairperson or
President on one day's notice to each director, either personally or by
telephone, express delivery service (so that the scheduled delivery date of the
notice is at least one day in advance of the meeting), telegram, facsimile
transmission, electronic mail (effective when directed to an electronic mail
address of the director), or other electronic transmission, as defined in
Section 232(c) (or any successor section) of the Delaware General Corporation
Law (effective when directed to the director), and on five days' notice by mail
(effective upon deposit of such notice in the mail). The notice need not
describe the purpose of a special meeting.
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3.5.3. TELEPHONE MEETINGS
Members of the Board of Directors may participate in a meeting of
the board by any communication by means of which all participating directors can
simultaneously hear each other during the meeting. A director participating in a
meeting by this means is deemed to be present in person at the meeting.
3.5.4. ACTION WITHOUT MEETING
Any action required or permitted to be taken at any meeting of the
Board of Directors may be taken without a meeting if the action is taken by all
members of the Board. The action must be evidenced by one or more consents in
writing or by electronic transmission describing the action taken, signed (if in
writing) by each director, and delivered to the Corporation for inclusion in the
minute book.
3.5.5. WAIVER OF NOTICE OF MEETING
A director may waive any notice required by statute, the Certificate
of Incorporation or these Bylaws before or after the date and time stated in the
notice. Except as set forth below, the waiver must be in writing, signed by the
director entitled to the notice, or made by electronic transmission by the
director entitled to the notice, and delivered to the Corporation for inclusion
in the minute book. Notwithstanding the foregoing, a director's attendance at or
participation in a meeting waives any required notice to the director of the
meeting unless the director at the beginning of the meeting objects to holding
the meeting or transacting business at the meeting and does not thereafter vote
for or assent to action taken at the meeting.
3.6. QUORUM AND VOTE AT MEETINGS
At all meetings of the board, a quorum of the Board of Directors
consists of a majority of the total number of directors prescribed pursuant to
SECTION 3.2 of these Bylaws. The vote of a majority of the directors present at
any meeting at which there is a quorum shall be the act of the Board of
Directors, except as may be otherwise specifically provided by statute or by the
Certificate of Incorporation or by these Bylaws.
3.7. COMMITTEES OF DIRECTORS
The Board of Directors may designate one or more committees, each
committee to consist of one or more directors. The Board may designate one or
more
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directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. If a member of a committee
shall be absent from any meeting, or disqualified from voting thereat, the
remaining member or members present and not disqualified from voting, whether or
not such member or members constitute a quorum, may, by unanimous vote, appoint
another member of the Board of Directors to act at the meeting in the place of
such absent or disqualified member. Any such committee, to the extent provided
in the resolution of the Board of Directors, 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 to
be affixed to all papers which may require it; but no such committee shall have
the power or authority in reference to approving or adopting, or recommending to
the stockholders, any action or matter expressly required by the Delaware
General Corporation Law to be submitted to stockholders for approval or
adopting, amending or repealing any bylaw of the Corporation; and unless the
resolution designating the committee, these bylaws or the Certificate of
Incorporation expressly so provide, no such committee shall have the power or
authority to declare a dividend, to authorize the issuance of stock, or to adopt
a certificate of ownership and merger pursuant to Section 253 of the Delaware
General Corporation Law. Such committee or committees shall have such name or
names as may be determined from time to time by resolution adopted by the Board
of Directors. Each committee shall keep regular minutes of its meetings and
report the same to the Board of Directors, when required. Unless otherwise
specified in the Board resolution appointing the Committee, all provisions of
the Delaware General Corporation Law and these Bylaws relating to meetings,
action without meetings, notice (and waiver thereof), and quorum and voting
requirements of the Board of Directors apply, as well, to such committees and
their members.
3.8. COMPENSATION OF DIRECTORS
The Board of Directors shall have the authority to fix the
compensation of directors. No such payment shall preclude any director from
serving the Corporation in any other capacity and receiving compensation
therefor.
4. OFFICERS
4.1. POSITIONS
The officers of the Corporation shall be a Chairperson, a President,
a Secretary and a Treasurer, and such other officers as the Board of Directors
(or an officer authorized by the Board of Directors) from time to time may
appoint,
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including one or more Vice Chairmen, Executive Vice Presidents, Vice Presidents,
Assistant Secretaries and Assistant Treasurers. Each such officer shall exercise
such powers and perform such duties as shall be set forth below and such other
powers and duties as from time to time may be specified by the Board of
Directors or by any officer(s) authorized by the Board of Directors to prescribe
the duties of such other officers. Any number of offices may be held by the same
person, except that in no event shall the President and the Secretary be the
same person. As set forth below, each of the Chairperson, President, and/or any
Vice President may execute bonds, mortgages and other contracts under the seal
of the Corporation, if required, except where required or permitted by law to be
otherwise executed and except where the execution thereof shall be expressly
delegated by the Board of Directors to some other officer or agent of the
Corporation.
4.2. CHAIRPERSON
The Chairperson shall (when present) preside at all meetings of the
Board of Directors and stockholders, and shall ensure that all orders and
resolutions of the Board of Directors and stockholders are carried into effect.
The Chairperson may execute bonds, mortgages and other contracts, under the seal
of the Corporation, if required, except where required or permitted by law to be
otherwise signed and executed and except where the signing and execution thereof
shall be expressly delegated by the Board of Directors to some other officer or
agent of the Corporation.
4.3. PRESIDENT
The President shall be the chief operating officer of the
Corporation and shall have full responsibility and authority for management of
the day-to-day operations of the Corporation, subject to the authority of the
Board of Directors and Chairperson. The President may execute bonds, mortgages
and other contracts, under the seal of the Corporation, if required, except
where required or permitted by law to be otherwise signed and executed and
except where the signing and execution thereof shall be expressly delegated by
the Board of Directors to some other officer or agent of the Corporation.
4.4. VICE PRESIDENT
In the absence of the President or in the event of the President's
inability or refusal to act, the Vice President (or in the event there be more
than one Vice President, the Vice Presidents in the order designated, or in the
absence of any designation, then in the order of their election) shall perform
the duties of the
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President, and when so acting shall have all the powers of, and be subject to
all the restrictions upon, the President.
4.5. SECRETARY
The Secretary shall have responsibility for preparation of minutes
of meetings of the Board of Directors and of the stockholders and for
authenticating records of the Corporation. The Secretary shall give, or cause to
be given, notice of all meetings of the stockholders and special meetings of the
Board of Directors. The Secretary or an Assistant Secretary may also attest all
instruments signed by any other officer of the Corporation.
4.6. ASSISTANT SECRETARY
The Assistant Secretary, or if there be more than one, the Assistant
Secretaries in the order determined by the Board of Directors (or if there shall
have been no such determination, then in the order of their election), shall, in
the absence of the Secretary or in the event of the Secretary's inability or
refusal to act, perform the duties and exercise the powers of the Secretary.
4.7. TREASURER
The Treasurer shall be the chief financial officer of the
Corporation and shall have responsibility for the custody of the corporate funds
and securities and shall see to it that full and accurate accounts of receipts
and disbursements are kept in books belonging to the Corporation. The Treasurer
shall render to the Chairperson, the President, and the Board of Directors, upon
request, an account of all financial transactions and of the financial condition
of the Corporation.
4.8. ASSISTANT TREASURER
The Assistant Treasurer, or if there shall be more than one, the
Assistant Treasurers in the order determined by the Board of Directors (or if
there shall have been no such determination, then in the order of their
election), shall, in the absence of the Treasurer or in the event of the
Treasurer's inability or refusal to act, perform the duties and exercise the
powers of the Treasurer.
4.9. TERM OF OFFICE
The officers of the Corporation shall hold office until their
successors are chosen and qualify or until their earlier resignation or removal.
Any officer may
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resign at any time upon written notice to the Corporation. Any officer elected
or appointed by the Board of Directors may be removed at any time, with or
without cause, by the affirmative vote of a majority of the Board of Directors.
4.10. COMPENSATION
The compensation of officers of the Corporation shall be fixed by
the Board of Directors or by any officer(s) authorized by the Board of Directors
to prescribe the compensation of such other officers.
4.11. FIDELITY BONDS
The Corporation may secure the fidelity of any or all of its
officers or agents by bond or otherwise.
5. CAPITAL STOCK
5.1. CERTIFICATES OF STOCK; UNCERTIFICATED SHARES
The shares of the Corporation shall be represented by certificates,
provided that the Board of Directors may provide by resolution that some or all
of any or all classes or series of the Corporation's stock shall be
uncertificated shares. Any such resolution shall not apply to shares represented
by a certificate until such certificate is surrendered to the Corporation.
Notwithstanding the adoption of such a resolution by the Board of Directors,
every holder of stock represented by certificates, and upon request every holder
of uncertificated shares, shall be entitled to have a certificate (representing
the number of shares registered in certificate form) signed in the name of the
Corporation by the Chairperson, President or any Vice President, and by the
Treasurer, Secretary or any Assistant Treasurer or Assistant Secretary of the
Corporation. Any or all the signatures on the certificate may be facsimile. In
case any officer, transfer agent or registrar whose signature or facsimile
signature appears on a 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 such person were such officer,
transfer agent or registrar at the date of issue.
5.2. LOST CERTIFICATES
The Board of Directors, Chairperson, President or Secretary may
direct a new certificate of stock to be issued in place of any certificate
theretofore issued by
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the Corporation and alleged to have been lost, stolen or destroyed, upon the
making of an affidavit of that fact by the person claiming that the certificate
of stock has been lost, stolen or destroyed. When authorizing such issuance of a
new certificate, the board or any such officer may, as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed
certificate or certificates, or such owner's legal representative, to advertise
the same in such manner as the board or such officer shall require and/or to
give the Corporation a bond or indemnity, in such sum or on such terms and
conditions as the board or such officer may direct, as indemnity against any
claim that may be made against the Corporation on account of the certificate
alleged to have been lost, stolen or destroyed or on account of the issuance of
such new certificate or uncertificated shares.
5.3. RECORD DATE
5.3.1. ACTIONS BY STOCKHOLDERS
In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders, 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 days nor less than
ten 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 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, unless the Board of Directors fixes 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 record date shall not be more than ten 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 Delaware General Corporation Law, 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 in the manner prescribed by Section 213(b)
of the Delaware General Corporation Law. If no record
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date has been fixed by the Board of Directors and prior action by the Board of
Directors is required by the Delaware General Corporation Law, the record date
for determining stockholders entitled to consent to corporate action in writing
without a meeting shall be at the close of business on the day on which the
Board of Directors adopts the resolution taking such prior action.
5.3.2. PAYMENTS
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 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.
5.4. STOCKHOLDERS OF RECORD
The Corporation shall be entitled to recognize the exclusive right
of a person registered on its books as the owner of shares to receive dividends,
to receive notifications, to vote as such owner, and to exercise all the rights
and powers of an owner. The Corporation shall not be bound to recognize 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,
except as otherwise may be provided by the Delaware General Corporation Law.
6. INDEMNIFICATION; INSURANCE
6.1. AUTHORIZATION OF INDEMNIFICATION
Each person who was or is a party or is threatened to be made a
party to or is involved in any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative and whether
by or in the right of the Corporation or otherwise (a "proceeding"), by reason
of the fact that he or she, or a person of whom he or she is the legal
representative, 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,
partner (limited or general) or agent of another corporation or of a
partnership, joint venture, limited liability company, trust or
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other enterprise, including service with respect to an employee benefit plan,
shall be (and shall be deemed to have a contractual right to be) indemnified and
held harmless by the Corporation (and any successor to the Corporation by merger
or otherwise) to the fullest extent authorized by, and subject to the conditions
and (except as provided herein) procedures set forth in the Delaware General
Corporation Law, as the same exists or may hereafter be amended (but any such
amendment shall not be deemed to limit or prohibit the rights of indemnification
hereunder for past acts or omissions of any such person insofar as such
amendment limits or prohibits the indemnification rights that said law permitted
the Corporation to provide prior to such amendment), against all expenses,
liabilities and losses (including attorneys' fees, judgments, fines, ERISA taxes
or penalties and amounts paid or to be paid in settlement) reasonably incurred
or suffered by such person in connection therewith; provided, however, that the
Corporation shall indemnify any such person seeking indemnification in
connection with a proceeding (or part thereof) initiated by such person (except
for a suit or action pursuant to SECTION 6.2 hereof) only if such proceeding (or
part thereof) was authorized by the Board of Directors of the Corporation.
Persons who are not directors or officers of the Corporation and are not so
serving at the request of the Corporation may be similarly indemnified in
respect of such service to the extent authorized at any time by the Board of
Directors of the Corporation. The indemnification conferred in this SECTION 6.1
also shall include the right to be paid by the Corporation (and such successor)
the expenses (including attorneys' fees) incurred in the defense of or other
involvement in any such proceeding in advance of its final disposition;
provided, however, that, if and to the extent the Delaware General Corporation
Law requires, the payment of such expenses (including attorneys' fees) incurred
by a director or officer in advance of the final disposition of a proceeding
shall be made only upon delivery to the Corporation of an undertaking by or on
behalf of such director or officer to repay all amounts so paid in advance if it
shall ultimately be determined that such director or officer is not entitled to
be indemnified under this SECTION 6.1 or otherwise; and provided further, that,
such expenses incurred by other employees and agents may be so paid in advance
upon such terms and conditions, if any, as the Board of Directors deems
appropriate.
6.2. RIGHT OF CLAIMANT TO BRING ACTION AGAINST THE CORPORATION
If a claim under SECTION 6.1 is not paid in full by the Corporation
within sixty days after a written claim has been received by the Corporation,
the claimant may at any time thereafter bring an action against the Corporation
to recover the unpaid amount of the claim and, if successful in whole or in
part, the claimant shall be entitled to be paid also the expense of prosecuting
such action. It shall be a defense to any such action (other than an action
brought to enforce a
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claim for expenses incurred in connection with any proceeding in advance of its
final disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has not met the standards of
conduct which make it permissible under the Delaware General Corporation Law for
the Corporation to indemnify the claimant for the amount claimed or is otherwise
not entitled to indemnification under SECTION 6.1, but the burden of proving
such defense shall be on the Corporation. The failure of the Corporation (in the
manner provided under the Delaware General Corporation Law) to have made a
determination prior to or after the commencement of such action that
indemnification of the claimant is proper in the circumstances because he or she
has met the applicable standard of conduct set forth in the Delaware General
Corporation Law shall not be a defense to the action or create a presumption
that the claimant has not met the applicable standard of conduct. Unless
otherwise specified in an agreement with the claimant, an actual determination
by the Corporation (in the manner provided under the Delaware General
Corporation Law) after the commencement of such action that the claimant has not
met such applicable standard of conduct shall not be a defense to the action,
but shall create a presumption that the claimant has not met the applicable
standard of conduct.
6.3. NON-EXCLUSIVITY
The rights to indemnification and advance payment of expenses
provided by SECTION 6.1 hereof shall not be deemed exclusive of any other rights
to which those seeking indemnification and advance payment of expenses may be
entitled under any by-law, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his or her official capacity and as
to action in another capacity while holding such office.
6.4. SURVIVAL OF INDEMNIFICATION
The indemnification and advance payment of expenses and rights
thereto provided by, or granted pursuant to, SECTION 6.1 hereof shall, unless
otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director, officer, employee, partner or agent and shall inure to
the benefit of the personal representatives, heirs, executors and administrators
of such person.
6.5. INSURANCE
The Corporation shall have power to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent of
the
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Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee, partner (limited or general) or agent of another
corporation or of a partnership, joint venture, limited liability company, trust
or other enterprise, against any liability asserted against such person or
incurred by such person in any such capacity, or arising out of such person's
status as such, and related expenses, whether or not the Corporation would have
the power to indemnify such person against such liability under the provisions
of the Delaware General Corporation Law.
7. GENERAL PROVISIONS
7.1. INSPECTION OF BOOKS AND RECORDS
Any stockholder, in person or by attorney or other agent, shall,
upon written demand under oath stating the purpose thereof, have the right
during the usual hours for business to inspect 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 to inspection, the demand under oath shall be accompanied by a power of
attorney or such 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 at its registered office or at its principal place of business.
7.2. DIVIDENDS
The Board of Directors may declare dividends upon the capital stock
of the Corporation, subject to the provisions of the Certificate of
Incorporation and the laws of the State of Delaware.
7.3. RESERVES
The directors of the Corporation may set apart, out of the funds of
the Corporation available for dividends, a reserve or reserves for any proper
purpose and may abolish any such reserve.
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7.4. EXECUTION OF INSTRUMENTS
All checks, drafts or other orders for the payment of money, and
promissory notes of the Corporation shall be signed by such officer or officers
or such other person or persons as the Board of Directors may from time to time
designate.
7.5. FISCAL YEAR
The fiscal year of the Corporation shall be fixed by resolution of
the Board of Directors.
7.6. SEAL
The corporate seal shall be in such form as the Board of Directors
shall approve. The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or otherwise reproduced.
7.7. AMENDMENT
These by-laws may be amended or repealed by the Board of Directors
at any meeting or by the stockholders casting 66 2/3% of the outstanding stock
of the Corporation entitled to vote thereon at any meeting.
* * * * *
The foregoing Bylaws were adopted by the Board of Directors on
_________________, 2001.
________________________________
Secretary
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