EXHIBIT 3.3
BY-LAWS
OF
USG CORPORATION
(DELAWARE)
AS OF JANUARY 1, 2007
BY-LAWS
OF
USG CORPORATION
ARTICLE I
OFFICES
The registered office of the corporation in the State of Delaware shall be
in the City of Wilmington, County of New Castle. The corporation may have such
other offices, either within or without the State of Delaware, as the business
of the corporation may require from time to time.
ARTICLE II
STOCKHOLDERS
ANNUAL MEETING
Section 1. The dates and times of the annual meetings of stockholders shall
be determined by or under the authority of the board of directors as permitted
by law for the purpose of electing directors and the transaction of such other
business as may properly come before the meeting. If the election of directors
shall not be held on the date designated for any such annual meeting or at any
adjournment thereof, the board of directors shall cause the election to be held
at a special meeting of the stockholders as soon thereafter as the board of
directors determines to be reasonably practicable.
SPECIAL MEETINGS
Section 2. Special meetings of the stockholders may be called at any time
by the chair of the board of directors or, if there shall be none then in
office, the chief executive officer of the corporation or by the corporate
secretary upon a request in writing of a majority of the number of directors as
determined from time to time by the board of directors under Section 2(b) of
Article III of these by-laws (the "whole board"). Any such request shall state
the purpose or purposes of the proposed meeting.
PLACE AND TIME OF MEETINGS
Section 3. Meetings of the stockholders for any purpose may be held at such
time and place, within or without the State of Delaware, as shall be determined
by the board of directors. Notwithstanding the foregoing, the board of directors
may, in its sole discretion, determine that meetings of stockholders will not be
held at any place, but will instead be held by means of remote communication,
subject to such guidelines and procedures as the board of directors may adopt
from time to time. The board of directors may postpone and reschedule any
previously scheduled annual or special meeting of stockholders.
NOTICE OF MEETINGS
Section 4. Written notice stating the place, day and hour of the meeting,
the means of remote communication, if any, by which stockholders and proxies may
be deemed to be present in person and vote at such meeting and in the case of a
special meeting the purpose or purposes for which the meeting is called, shall
be given by mail or electronically to each stockholder entitled to vote thereat
not less than ten days nor more than 60 days before the date of the meeting.
Such notice, when mailed, shall be deemed to be delivered when deposited in the
United States mail in a sealed envelope addressed to the stockholder at such
stockholder's address as it appears in the records of the corporation, with
postage prepaid; if sent electronically, such notice shall be deemed given when
dispatched electronically to the email address of such stockholder it provided
to the corporation.
QUORUM, VOTE AND PROCEDURES
Section 5. (a) Except as may be otherwise provided in resolutions of the
board of directors providing for the issuance of any class or series of
preferred stock (a "preferred stock designation"), the holders of a majority of
the stock issued and outstanding and entitled to vote thereat, present in person
or represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business. If, however, such quorum shall not
be present or represented at any meeting of the stockholders, the stockholders
entitled to vote thereat, present in person or represented by proxy, shall have
power to adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present or represented. At
such adjourned meeting at which a quorum shall be present or represented, any
business may be transacted which might have been transacted at the meeting as
originally scheduled.
(b) When a quorum is present at any meeting, the vote of the holders
of a majority of the stock having voting power present in person or represented
by proxy and entitled to vote on the subject matter and which is actually so
voted shall decide any question brought before such meeting, unless the question
is one upon which by express provision of the certificate of incorporation, a
preferred stock designation, these by-laws, law or stock exchange requirements a
different vote is required, in which case such express provision shall govern
and control the decision of such question.
ORGANIZATION OF MEETING
Section 6. The chair of the board of directors, or such other officer of
the corporation designated by a majority of the whole board, shall call meetings
of the stockholders to order and shall act as presiding officer thereof. Unless
otherwise determined prior to the meeting by a majority of the whole board, the
presiding officer of the meeting of stockholders shall have the right and the
authority to determine and maintain the rules, regulations and procedures for
what the presiding officer determines to be the proper conduct of the meeting,
including without limitation restricting entry to the meeting after it has
commenced, maintaining order and the safety of those in attendance, opening and
closing the polls for voting, dismissing business or proposals not properly
submitted, limiting the time allowed for discussion of the business of the
meeting, restricting the persons (other than stockholders of the corporation or
their duly
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appointed proxies) that may attend the meeting and ascertaining whether any
stockholder or proxy may be excluded from the meeting based upon any
determination by the presiding officer, in his or her sole discretion, that the
stockholder or proxy has disrupted or is likely to disrupt the meeting. The
corporate secretary or such other officer designated by the presiding officer of
the meeting shall act as secretary of the meeting of stockholders.
VOTING OF STOCK
Section 7. Except as otherwise provided by a preferred stock designation,
on each matter submitted to a vote at a meeting of the stockholders, each holder
of voting stock shall be entitled to one vote in person or by proxy for each
share of common stock held by the stockholder on the record date for the meeting
and such votes may be cast either in person or by proxy. Every proxy must be
authorized in a manner permitted by Section 212 of the Delaware General
Corporation Law or any successor provision. In all elections for directors each
stockholder shall have the right to vote, in person or by proxy, the number of
shares owned by such stockholder for as many persons as there are directors to
be elected, but no stockholder may cumulate votes in the election of directors
or otherwise.
STOCKHOLDER LISTS
Section 8. The officer or agent having charge of the stock ledger for the
shares of the corporation shall prepare and make at least ten days before each
meeting of stockholders a complete list of the stockholders entitled to vote at
such meeting, arranged in alphabetical order with the post office mailing
address of and the number of shares registered in the name of each stockholder
(such list, the "stockholder list"). In no event, however, will the corporation
be required to include electronic mail addresses or other electronic contact
information on the stockholder list. The stockholder 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, if the information required to gain access to such list is
furnished with the notice of the meeting, or (2) during ordinary business hours,
at the principal place of business of the corporation. In the event that the
corporation determines, as evidenced by a determination of the presiding officer
for the meeting, to make the stockholder list available on an electronic
network, the corporation may take reasonable steps to ensure that such
information is available only to stockholders of the corporation. If the meeting
is to be held at a place, such list shall be produced and kept at the time and
place of the meeting during the whole time thereof and shall be subject to the
inspection of any stockholder who may be present. If the meeting is to be held
solely by means of remote communication, then the stockholder list will also be
open to the examination of any stockholder during the whole time of the meeting
on an electronic network approved by the presiding officer of the meeting, and
the information required to access such list shall be provided with the notice
of the meeting.
RECORD DATES
Section 9. (a) 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 will
not be more than 60 or less than ten calendar days before the date of such
meeting. If no record date is fixed by the board of directors, the record
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date for determining stockholders entitled to notice of or to vote at a meeting
of stockholders shall be at the close of business on the calendar day next
preceding the day on which notice is given, or, if notice is waived, at the
close of business on the calendar 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 the stockholders shall apply to any adjournment of
the meeting, although the board of directors may fix a new record date for the
adjourned meeting.
(b) 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
will not be more than 60 calendar days prior to such action. If no record date
is fixed, the record date for determining stockholders for any such purpose will
be at the close of business on the calendar day on which the board of directors
adopts the resolution relating thereto.
NOMINATIONS OF DIRECTORS
Section 10. (a) Subject to such rights of the holders of any class or
series of preferred stock as shall be prescribed in a preferred stock
designation, only persons who are nominated in accordance with the procedures
set forth in this Section 10 shall be eligible for election as directors.
(b) Nominations of persons for election as directors may be made only
at an annual meeting of stockholders (i) by or at the direction of the board of
directors, based on the recommendation of the Governance Committee (or, if
applicable, a subcommittee thereof), or (ii) by any stockholder of the
corporation that (A) is a stockholder of record at the time of giving of notice
provided for in this Section 10, (B) is entitled to vote at such meeting in the
election of directors, (C) is not a party to any agreement with the corporation
already providing for, or restricting or otherwise relating to, representation
on the board of directors or the voting or disposition of shares owned by it,
and (D) complies with the requirements of this Section 10. If a stockholder, or
a beneficial owner on whose behalf any such nomination is made, has provided the
corporation with a nomination solicitation notice, as that term is defined in
this Section 10, such stockholder or beneficial owner must have delivered to the
stockholders of the corporation a proxy statement and form of proxy and included
in such materials the nomination solicitation notice. All nominations made by
stockholders must be made pursuant to timely notice in proper written form to
the corporate secretary.
(c) To be timely, a stockholder's notice must be addressed to the
corporate secretary and delivered or mailed and in all events received at the
principal executive offices of the corporation not less than 60 nor more than 90
calendar days prior to the first anniversary of the date on which the
corporation first mailed its proxy materials for the preceding year's annual
meeting of stockholders, except that if the date of the annual meeting is
advanced more than 30 calendar days prior to or delayed by more than 30 calendar
days after the anniversary of the preceding year's annual meeting, notice by the
stockholder to be timely must be so received not later than the close of
business on the later of the 90th calendar day prior to such annual meeting and
the tenth calendar day following the day on which public disclosure of the date
of such
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meeting is first made. In no event will the public announcement of an
adjournment of an annual meeting commence a new time period for the giving of a
stockholder's notice as described above.
(d) To be in proper written form, such stockholder's notice must set
forth or include (i) the name and address, as they appear on the corporation's
books, of the stockholder giving the notice and of the beneficial owner, if any,
on whose behalf the nomination is made; (ii) a representation that the
stockholder giving the notice is a holder of record of stock of the corporation
entitled to vote at such annual meeting and intends to appear in person or by
proxy at the annual meeting to nominate the person or persons specified in the
notice; (iii) the class and number of shares of stock of the corporation owned
beneficially and of record by the stockholder giving the notice and by the
beneficial owner, if any, on whose behalf the nomination is made; (iv) a
description of all arrangements or understandings between or among any of (A)
the stockholder giving the notice, (B) the beneficial owner on whose behalf the
notice is given, (C) each nominee, and (D) any other person or persons (naming
such person or persons) pursuant to which the nomination or nominations are to
be made by the stockholder giving the notice; (v) such other information
regarding each nominee proposed by the stockholder giving the notice as would be
required to be included in a proxy statement filed pursuant to the proxy rules
of the Securities and Exchange Commission had the nominee been nominated, or
intended to be nominated, by the board of directors; (vi) the signed consent of
each nominee to serve as a director if so elected; (vii) whether either such
stockholder or beneficial owner intends to deliver a proxy statement and form of
proxy to the stockholders of the corporation (an affirmative statement of such
intent, a "nomination solicitation notice"); (viii) a representation that such
stockholder intends to appear in person or by proxy at the meeting to nominate
each person named in the stockholder's notice for election as a director; and
(ix) evidence reasonably satisfactory to the presiding officer of the meeting
that the stockholder is acting on its own behalf and not on behalf of or in
concert with any other person, unless such other person is eligible to submit
such nomination and does so in accordance with this Section 10. At the request
of the board of directors or its chair, any person nominated for election as a
director must furnish to the corporate secretary that information required to be
set forth in a stockholder's notice of nomination that pertains to the nominee.
For purposes of these by-laws, "public disclosure" means disclosure in a press
release reported by the Dow Jones News Service, Associated Press or comparable
national news service or in a document filed by the corporation with the
Securities and Exchange Commission pursuant to the Exchange Act of 1934 and the
rules and regulations thereunder (the "Exchange Act") or furnished by the
corporation to its stockholders.
(e) The presiding officer of the annual meeting of stockholders shall
determine whether the requirements of this Section 10 have been met with respect
to any nomination or intended nomination. If the presiding officer determines
that any nomination was not made in accordance with the requirements of this
Section 10, he or she shall advise the stockholder making the nomination and the
nominee will not be presented at the meeting of stockholders. In all events,
copies of the materials provided hereunder shall be furnished to the Governance
Committee by the corporate secretary or another officer of the corporation.
(f) Notwithstanding any other provision of these by-laws or applicable
law absent this provision, (i) a stockholder making a nomination under this
Section 10 must also comply with all applicable requirements of the Exchange Act
with respect to the matters set forth in this
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Section 10 and (ii) any nomination for election of directors to the board of
directors will be invalid if and to the extent that, giving effect thereto and
to the election of the nominees so designated, together with the nominees
approved by the Governance Committee, the composition of the board of directors
would not meet the criteria for the composition of the board of directors
hereinafter set forth. In the event that corporate secretary or in his or her
absence or failure to act any other officer of the corporation determines that a
nomination was made in accordance with these by-laws and applicable law except
for compliance with such board composition requirements, the corporate secretary
or such other officer shall so inform the stockholder making the nomination and
the nominee will not be presented at the meeting of stockholders.
BUSINESS TO BE CONDUCTED OR CONSIDERED AT STOCKHOLDERS MEETINGS
Section 11. (a) At an annual meeting of stockholders, only such business
may be conducted or considered, and only such proposals may be acted upon, as
are properly brought before the annual meeting. To be properly brought before an
annual meeting, the business or proposal must be (i) specified in the notice of
the annual meeting (or any supplement thereto) given in accordance with Section
4 of Article II of these by-laws, (ii) otherwise properly brought before the
annual meeting by the presiding officer or by or at the direction of a majority
of the whole board, or (iii) otherwise properly requested to be brought before
the annual meeting by a stockholder of the corporation in accordance with this
Section 11.
(b) For business to be properly requested by a stockholder to be
brought before an annual meeting of stockholders, (i) the stockholder must be a
stockholder of the corporation of record at the time of the giving of the notice
for such annual meeting provided for in these by-laws, (ii) the stockholder must
be entitled to vote at such meeting, (iii) the stockholder must have given
timely notice thereof in proper written form to the corporate secretary, and
(iv) if the stockholder, or the beneficial owner on whose behalf any business is
brought before the meeting, has provided the corporation with a proposal
solicitation notice, as that term is defined in this Section 11, such
stockholder or beneficial owner must have delivered to the stockholders a proxy
statement and form of proxy and included in such materials the proposal
solicitation notice.
(c) To be timely, a stockholder's notice must be addressed to the
corporate secretary and delivered to or mailed and in all events received at the
principal executive offices of the corporation not less than 60 nor more than 90
calendar days prior to the first anniversary of the date on which the
corporation first mailed its proxy materials for the preceding year's annual
meeting of stockholders, except that if the date of the annual meeting is
advanced more than 30 calendar days prior to or delayed by more than 30 calendar
days after the anniversary of the preceding year's annual meeting, notice by the
stockholder to be timely must be so received not later than the close of
business on the later of the 90th calendar day prior to such annual meeting or
the tenth calendar day following the day on which public disclosure of the date
of such meeting is first made. In no event will the public announcement of an
adjournment of an annual meeting commence a new time period for the giving of a
stockholder's notice as described above.
(d) To be in proper written form, a stockholder's notice to the
corporate secretary must set forth as to each matter the stockholder proposes to
bring before the annual meeting (i) a
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description in reasonable detail of the business desired to brought before the
annual meeting and the reasons for conducting such business at the annual
meeting; (ii) the name and address, as they appear on the corporation's books,
of the stockholder proposing such business and the beneficial owner, if any, on
whose behalf the proposal is made; (iii) the class and series and number of
shares of capital stock of the corporation that are owned beneficially and of
record by the stockholder proposing such business and by the beneficial owner,
if any, on whose behalf the proposal is made; (iv) a description of all
arrangements or understandings among such stockholder and any other person or
persons (including their names) in connection with the proposal of such business
by such stockholder and any material interest of such stockholder in such
business; (v) whether either such stockholder or beneficial owner intends to
deliver a proxy statement and form of proxy to the stockholders of the
corporation (an affirmative statement of such intent, a "proposal solicitation
notice"); and (vi) a representation that such stockholder intends to appear in
person or by proxy at the annual meeting to bring such business before the
annual meeting. Notwithstanding the foregoing provisions of this Section 11, a
stockholder must also comply with all applicable requirements of the Exchange
Act with respect to matters set forth in this Section 11. Nothing in this
Section 11 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.
(e) At a special meeting of stockholders, only such business may be
conducted or considered as is properly brought before the meeting. To be
properly brought before a special meeting of stockholders, business must be (i)
specified in the notice of the meeting (or any supplement thereto) given by or
at the direction of the chair of the board of directors, the president or a
majority of the whole board in accordance with Section 4 of Article II of these
by-laws or (ii) otherwise properly brought before the meeting by the presiding
officer or by or at the direction of a majority of the whole board.
(f) The presiding officer of the meeting shall determine whether the
requirements of this Section 11 have been met with respect to any business or
proposal sought to be brought before the meeting. If the presiding officer of
the meeting determines that any business or proposal is not properly brought
before the meeting, he or she shall so inform the stockholder proposing the
business or proposal and any such business shall not be conducted or considered
or any such proposal shall not be acted upon at the meeting. In all events,
copies of the materials provided hereunder shall be furnished to the Governance
Committee by the corporate secretary or another officer of the Company.
(g) The recommendation of the Governance Committee (or, if applicable,
a subcommittee thereof) as to how stockholders should vote in the matter
referred to herein or in the preceding Section 10, or, if applicable, its
decision not to make such a recommendation, shall be communicated to
stockholders or, if determined to be impracticable by the chair of the
Governance Committee, publicly disclosed by the corporation. Nothing herein or
in the preceding Section 10 shall require that proxies be solicited by or on
behalf of the corporation or the board of directors in respect of any matters
proposed under Sections 10 or 11, whether or not the Governance Committee (or,
if applicable, a subcommittee thereof) makes a recommendation in respect
thereof.
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ARTICLE III
DIRECTORS
GENERAL POWERS
Section 1. The business and affairs of the corporation shall be managed
under the direction of the board of directors.
NUMBER, CLASSES, AND QUALIFICATIONS
Section 2. (a) The number of directors which shall constitute the whole
board shall be not less than nine or more than 13 and shall be divided into
three classes, as nearly equal in number as practicable.
(b) Subject to Section 2(a) of this Article III, the number and
classes of directors shall be determined from time to time by resolution of the
board of directors.
(c) At each annual meeting of stockholders, directors shall be elected
to fill all seats in the class whose term expires at such annual meeting and
each director so elected shall hold office for a term expiring at the third
annual meeting of stockholders after election as a director and until a
successor shall be duly elected and qualified.
(d) No non-employee director shall serve as such beyond the first
annual meeting of stockholders following that director's 70th birthday, unless a
majority of the board of directors shall determine to suspend application of
this limitation with respect to one or more individual directors, nor while such
person is an owner, member or employee of or affiliated or associated with a
firm that since January 1st of the last full calendar year has provided or is
providing legal, accounting or auditing services to the corporation or any of
its subsidiaries. A non-employee director shall report to the chair of the
Governance Committee any significant change in such director's principal
business, occupation or position and shall consult with the chair of the
Governance Committee concerning the possible effect of such change on continued
service as a director. No officer director shall serve as a director beyond the
date such person ceases to be an officer.
(e) A majority of the whole board shall be comprised of independent
directors. In the event that a majority of the whole board is not comprised of
independent directors by reason of a resignation, retirement, removal, change in
the composition of the board or other event, then as promptly as practicable
thereafter the remaining independent directors, whether or not a majority of the
whole board or the directors then in office, shall elect another independent
director or directors to assure that a majority of the whole board is comprised
of independent directors. No action requiring approval by a majority of the
independent directors or of any board committee a majority of the members of
which are required to be independent directors may be taken by the board or any
such committee, unless either (i) the chair of the board of directors determines
that so doing is necessary to avoid or mitigate material damage or risk of
damage to the corporation or (ii) a majority of the whole board shall determine
to suspend application of this limitation with respect to one or more individual
directors.
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(f) For purposes of these by-laws, (i) "non-employee director" means
any director who is not also a full-time employee of the corporation or any of
its subsidiaries, (ii) "officer director" means a director who is also an
elected officer of the corporation or any of its subsidiaries, and (iii)
"independent director" means any director who has been nominated for election by
the Governance Committee and who is not (1) an officer or employee of the
corporation or an officer, employee or director of any subsidiary of the
corporation, (2) an owner, member or employee of a law or accounting firm
referred to in Section 2(d) of this Article III, (3) elected, nominated or
proposed (A) pursuant to a stockholder or other agreement to which the
corporation is a party or a preferred stock designation or (B) by a beneficial
owner of more than 15% of the corporation's then-outstanding common stock,
unless the number of shares beneficially owned by such person was increased to
an amount in excess of 15% of the then-outstanding common stock solely as a
result of share purchases by the corporation that reduced the number of shares
then-outstanding, or (4) a person who does not, or is presumed not to, meet the
requirements of an "independent director" under the then-applicable requirements
of the principal national securities exchange on which the corporation's common
stock is admitted for trading. The terms "person" and "beneficial owner" are
defined in Section 10 (b) of this Article.
(g) A majority of the whole board may, following review by the
Governance Committee, from time to time adopt policies or protocols on various
corporate governance matters, including procedures applicable in the event of
corporate emergencies. Subject to applicable legal and stock exchange
requirements, such policies or protocols may impose requirements that are more
stringent in purpose or effect than those imposed by these by-laws or authorize
notices to be given, meetings to be convened or other actions to be taken
between regularly scheduled meetings of the board of directors by officers or
directors other then those specified in the by-laws if the officer or director
otherwise authorized herein is unavailable to act because of death, disability
or other similar circumstances. Except as aforesaid, such policies and protocols
will in all events be subject to these by-laws and in the event of an
inconsistency between them and these by-laws, the by-laws will prevail with
regard to questions of whether an action by the board of directors is authorized
as a matter of law.
VACANCIES
Section 3. Newly created directorships resulting from any increase in the
authorized number of directors and any vacancy on the board of directors from
death, resignation, retirement, disqualification, removal from office or other
cause shall be filled by a majority vote of the directors then in office, based
upon the recommendation of the Governance Committee (or, if applicable, a
subcommittee thereof). Each director so chosen shall hold office for a term
expiring at the annual meeting of stockholders at which the term of the class to
which he or she shall have been elected expires, and until his or her successor
shall be duly elected and qualified.
REGULAR MEETINGS
Section 4. Regular meetings of the board of directors shall be held each
year immediately after the annual meeting of stockholders and on such other
dates as the board of directors may from time to time determine. If the day
fixed for any such regular meeting shall be a legal holiday, the meeting
scheduled for that day shall be held on the next succeeding business
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day which is not a legal holiday. The date and time of any such regular meeting
may be changed as the board of directors may from time to time determine by
resolution.
SPECIAL MEETINGS
Section 5. Special meetings of the board of directors may be called at any
time by the chair of the board of directors or, if there be none then in office,
the chief executive officer or by the corporate secretary upon the request of
not less than a majority of the whole board.
PLACE OF MEETINGS
Section 6. All meetings of the board of directors, whether regular or
special, shall be held at the principal executive offices of the corporation in
Chicago, Illinois, except that any meeting, whether regular or special, may be
held at such other place as a majority of the whole board may from time to time
determine by resolution or as may be fixed in a notice of the meeting.
NOTICE OF MEETINGS
Section 7. No notice of the holding of any regular meeting of the board of
directors is required. Written notice of any special meeting shall be given by
telephone facsimile or electronic mail not less than two days before the date of
the meeting, or by telephone not less than 24 hours before the time of the
meeting, with confirmation of notice by telephone facsimile or electronic mail
to be sent promptly. If such notice is given by telephone facsimile or
electronic mail, the same shall be deemed to be delivered when placed on
telephone lines for facsimile transmittal or electronic mail to the director at
the number or e-mail address therefor last shown in the corporation's records.
Notice may also be given by a nationally recognized overnight courier service,
which shall be deemed effective on the date of service specified therein, or may
be given by first-class postage prepaid mail so long as the meeting date is at
least ten business days after the date of posting. Attendance of any director at
any special meeting shall constitute a waiver of notice of such meeting except
where a director attends a meeting for the express purpose of objecting to the
transaction of any business on the ground that the meeting is not lawfully
called or convened. Neither the business to be transacted at nor the purpose of
any special meeting of the board of directors need be stated in the notice or
waiver of notice of such meeting.
QUORUM
Section 8. A majority of the whole board shall constitute a quorum for the
transaction of business, but if at any meeting of the board there shall be less
than a quorum present, a majority of those present may adjourn the meeting from
time to time.
ORGANIZATION OF MEETINGS
Section 9. (a) At meetings of the board of directors, the chair of the
board of directors, or in his or her absence the director so designated by a
majority of the directors participating in the meeting, shall preside as chair
of the meeting. The corporate secretary of the corporation, or in his or her
absence an assistant corporate secretary, shall act as secretary of all meetings
of the
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board of directors and, in the absence of all such persons, the chair of the
meeting shall appoint some other person to act as secretary of the meeting.
(b) From time to time as they deem appropriate and in all events not
less frequently than annually, the independent directors shall meet in executive
session to discuss such matters as they may deem appropriate. The chairs of
these sessions shall be selected by the independent directors on such basis as
they may deem appropriate.
ACTIONS OF THE BOARD
Section 10. (a) Except as provided elsewhere in these by-laws, any action
approved by plurality vote of the directors present at any meeting of the
directors at which a quorum is present will be an action of the board of
directors. When action is contemplated herein to be taken by the whole board, it
shall be deemed to be properly authorized if approved by a majority of the
number of directors constituting the whole board.
(b) In addition to other approvals required hereby, the following
matters may be approved only by the vote or consent of the board of directors
which includes the vote or consent of directors constituting a majority of the
independent directors then members of the board:
(i) the election of the chair of the board of directors and the
chief executive officer (who may, but are not required to, be the same
person);
(ii) the designation of any director as an independent director;
(iii) the appointment of members of the Audit, Compensation and
Organization and Governance Committees;
(iv) the approval of any amendment to these by-laws by the board
of directors; and
(v) the approval of any change in the remuneration of directors.
(c) For purposes hereof, the terms "person" and "beneficial ownership"
shall have the meanings given to these terms under Section 13(d) of the Exchange
Act, provided, however, that (A) to assure that the independence requirements
herein do not have the unintended effect of inhibiting lawful proxy contests, a
person shall not be deemed to "beneficially own" any voting stock solely by
reason of a revocable proxy obtained in accordance with applicable legal
requirements and (B) to assure that the provisions herein do not have the effect
of expanding the antitakeover effects of the classified term provisions of the
corporation's certificate of incorporation in certain circumstances, paragraph
(c) of Section 2 of this Article and this Section 10 shall cease to apply,
without further action, immediately after the second annual meeting of
stockholders after the date, if applicable, on which any person acquires more
than 15% of the outstanding voting stock of the corporation pursuant to a tender
offer made in accordance with Sections 14(d) of the Exchange Act.
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COMPENSATION OF DIRECTORS
Section 11. Each director not otherwise employed by the corporation or an
affiliated corporation shall be entitled to be paid expenses, if any, of
attendance at such meetings of the board of directors or any board committee and
remuneration for service as a director as determined from time to time by the
board of directors (subject to Section 10(b)(v) of this Article), including fees
for attendance at meetings of the board or board committees as the board of
directors may from time to time determine.
ARTICLE IV
COMMITTEES OF DIRECTORS
DESIGNATION OF STANDING COMMITTEES
Section 1. The corporation shall have the following standing committees: a
Compensation and Organization Committee (the charter for which is set forth in
Annex 1), an Audit Committee (the charter for which is set forth in Annex 2), a
Governance Committee (the charter for which is set forth in Annex 3), a Finance
Committee (the charter for which is set forth in Annex 4) and a Corporate
Affairs Committee (the charter for which is set forth in Annex 5). Each board
committee shall have the authority set forth in its charter, as from time to
time approved by the whole board following review by the Governance Committee
and the particular Committee affected thereby and as provided by applicable law
or stock exchange requirements. Requirements for committee composition, if
applicable, shall be set forth in the applicable charter, subject to applicable
legal and stock exchange requirements. Subject to any applicable legal and stock
exchange requirements, each board committee may from time to time appoint such
subcommittees as it deems appropriate from among its members.
OTHER COMMITTEES OF DIRECTORS
Section 2. The board of directors may, by resolution passed by a majority
of the whole board, designate from time to time other committees of the board of
directors of such number of directors and with such powers as the board of
directors may by resolution determine, except that any authority or power given
to any of the Audit Committee, the Compensation and Organization Committee, the
Finance Committee or the Governance Committee in these by-laws, including any
Annex hereto, by resolution of the board of directors or by law or stock
exchange requirements may be exercised only by that committee, and no other
committee or the board or directors itself may take any action to the extent
inconsistent therewith.
APPOINTMENT OF COMMITTEE MEMBERS
Section 3. The board of directors at its meeting following the annual
meeting of stockholders shall, upon approval of a majority of the whole board
and based on the recommendation of the Governance Committee, designate the
directors to constitute the membership of each standing committee and such
directors shall serve until the directors meeting following the next annual
meeting of stockholders, except that (a) vacancies during the year on any
standing committee shall be filled by the board of directors based upon the
recommendation of the Governance Committee (or, if applicable, a subcommittee
thereof) so
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that the membership of each committee shall be filled at all times and (b) in
the absence or disqualification of any member of a committee, the members of
that committee present at any meeting and not disqualified from voting, whether
or not constituting a quorum, may unanimously appoint another member of the
board of directors to act at the meeting in the place of the absent or
disqualified member. The chair of each committee shall be designated by action
of a majority of the whole board based on the recommendation of the Governance
Committee (or, if applicable, a subcommittee thereof).
MEETINGS -- QUORUM
Section 4. Meetings of each board committee may be called by its chair or
by any two members of the committee or by the chief executive officer of the
corporation or by resolution of the whole board. Each such committee shall fix
its own rules of procedure consistent with these by-laws and, as applicable, the
applicable charters annexed hereto. The presence of a majority of the members of
a committee shall be necessary to constitute a quorum for the transaction of
business, and the affirmative vote of a majority of all the members of the
committee present at a duly convened committee meeting shall be necessary for
the adoption of any resolution or the taking of any action. Each committee shall
report to the board of directors all actions of the committee at the next
directors meeting following any meeting of any such committee. Regular minutes
of the proceedings of each committee shall be kept in a book provided for that
purpose.
ARTICLE V
OFFICERS
GENERAL PROVISIONS
Section 1. The officers of the corporation shall be elected by the board of
directors (subject to Section 10 of Article III), and shall consist of a chair
of the board of directors, who, unless the board of directors specifies
otherwise, shall also be the chief executive officer, a president, who may also
be the chair of the board of directors or the chief executive officer, a
corporate secretary and a treasurer. The board of directors may also elect one
or more vice or deputy chairs, one or more vice presidents (who may be given
particular designations with respect to authority, function or seniority) and
such other officers as the board of directors may from time to time determine.
Notwithstanding the foregoing, by specific action, the board of directors may
authorize the chair of the board of directors to appoint any person to any
office other than chair of the board of directors, president, corporate
secretary or treasurer. Any number of offices may be held by the same person.
Any of the offices may be left vacant from time to time as the board of
directors may determine or by reason of a vacancy. In the case of the absence or
disability of any officer of the corporation or for any other reason deemed
sufficient by a majority of the board of directors, the board of directors may
delegate the absent or disabled officer's powers or duties to any other officer
or to any director.
COMPENSATION
Section 2. The compensation of the chief executive officer of the
corporation shall be fixed by the board of directors (by vote of the independent
directors only) upon the
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recommendation of the Compensation and Organization Committee. The board of
directors shall fix, or delegate the power to fix, the compensation of other
officers of the corporation.
SUCCESSION
Section 3. The officers of the corporation shall hold office, unless
removed by the board of directors, until their successors are elected and
qualified. Any officer may be removed at any time by the affirmative vote of a
majority of the whole board. Any vacancy occurring in any office of the
corporation may be filled by the board of directors or by the chair of the board
of directors as provided in Section 1 of this Article.
AUTHORITY
Section 4. Each of the officers of the corporation shall have such
authority and shall perform such duties as are customarily incident to their
respective offices or as may be specified from time to time by the board of
directors.
ARTICLE VI
CERTIFICATES OF STOCK - DIVIDENDS
Section 1. (a) Unless otherwise directed by the board of directors or its
chair, every holder of stock in the corporation shall be entitled to have a
certificate signed in the name of the corporation by the chair of the board of
directors or the president and the corporate secretary or an assistant corporate
secretary, certifying the number of shares owned by him in the corporation. If
such certificate is countersigned (i) by a transfer agent other than the
corporation or its employee or (ii) by a registrar other than the corporation or
its employee, any other signature on the certificate may be a facsimile. In case
any officer, transfer agent, or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent or registrar before such certificate is issued, the
certificate may be issued by the corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
(b) All certificates surrendered to the corporation for transfer shall
be canceled and no new certificate shall be issued until the former certificate
for a like number of shares of the same class has been surrendered and canceled
or properly accounted for in the case of a lost certificate.
TRANSFER OF SHARES
Section 2. Upon surrender to the corporation or transfer agent of the
corporation of a certificate of shares duly endorsed and accompanied by proper
evidence of succession, assignment or authority to transfer, it shall be the
duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
The board of directors may appoint one or more transfer agents and registrars of
transfer, and may require all stock certificates to bear the signature of a
transfer agent and of a registrar of transfers.
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REGISTERED STOCKHOLDERS
Section 3. 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 and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and 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 provided by the laws of
Delaware or elsewhere in these by-laws.
DIVIDENDS
Section 4. Dividends upon the capital stock of the corporation, subject to
the provisions, if any, of the certificate of incorporation, may be declared by
the board of directors at any regular or special meeting pursuant to law.
Dividends may be paid in cash, in property or in shares of capital stock,
subject to the provisions of the certificate of incorporation.
ARTICLE VII
INDEMNIFICATION OF DIRECTORS AND OFFICERS
The corporation (i) shall indemnify every person who is or was a director
or officer of the corporation or is or was serving at the corporation's request
as a director or officer of another corporation, partnership, joint venture,
trust or other enterprise and (ii) shall, if the board of directors so directs,
indemnify any person who is or was an employee or agent of the corporation or is
or was serving at the corporation's request as an employee or agent of another
corporation, partnership, joint venture, trust or other enterprise to the
extent, in the manner, and subject to compliance with the applicable standards
of conduct, provided by Section 145 of the General Corporation Law of the State
of Delaware as the same (or any substitute provision therefor) may be in effect
from time to time. Without limiting the foregoing, the corporation shall
indemnify, and (subject to the receipt of any required undertaking to repay
expenses) advance expenses to, every person who is or was a director or officer
of the corporation to the fullest extent permitted by law.
Such indemnification (i) shall not be deemed exclusive of any other rights
to which any person seeking indemnification under or apart from this Article VII
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, and
(ii) shall continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
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ARTICLE VIII
GENERAL PROVISIONS
CHECKS
Section 1. All checks or demands for money and 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.
FISCAL YEAR
Section 2. The fiscal year of the corporation shall begin on the first day
of January of each year and end at the close of the last day of December in the
same year.
SEAL
Section 3. The corporate seal shall have inscribed thereon the name of the
corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
WAIVER OF NOTICE
Section 4. Whenever any notice whatever is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
by-laws, a waiver thereof in writing, signed by the person or persons entitled
to said notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
ARTICLE IX
AMENDMENTS
These by-laws may be amended or repealed (i) subject to Article TWELFTH of
the corporation's certificate of incorporation and Section 10 of Article III of
these by-laws, by the affirmative vote of a majority of the whole board or (ii)
by the affirmative vote of the holders of 80% of the voting power of the
corporation's stock outstanding and entitled to vote thereon.
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