EXHIBIT 99.1
BY-LAWS
OF
TENNECO INC.
AS AMENDED MARCH 4, 2008
ARTICLE I
PLACE OF STOCKHOLDER MEETINGS
Section 1. All meetings of the stockholders of the corporation shall be
held at such place or places, within or without the State of Delaware, as may
from time to time be fixed by the Board of Directors of the corporation (the
"Board"), or as shall be specified or fixed in the respective notices or waivers
of notice thereof.
ANNUAL MEETING
Section 2. The Annual Meeting of Stockholders shall be held on such date
and at such time as may be fixed by the Board and stated in the notice thereof,
for the purposes of electing directors and for the transaction of only such
other business as is properly brought before the meeting in accordance with
these By-Laws.
SPECIAL MEETING
Section 3. Subject to the rights of the holders of any series of preferred
stock, par value $.01 per share, of the corporation (the "Preferred Stock") to
elect additional directors under specified circumstances, special meetings of
the stockholders shall be called by the Board. The business transacted at a
special meeting shall be confined to the purposes specified in the notice
thereof. Special meetings shall be held at such date and at such time as the
Board may designate.
NOTICE OF MEETING
Section 4. Written notice of each meeting of stockholders, stating the
place, date and hour of the meeting, and the purpose or purposes thereof, shall
be mailed not less than ten nor more than sixty days before the date of such
meeting to each stockholder entitled to vote thereat.
QUORUM
Section 5. Unless otherwise provided by statute, the holders of a majority
of the votes entitled to be cast at the meeting, present either in person or by
proxy, shall constitute a quorum at such meeting. The Secretary of the
corporation or in his absence an Assistant Secretary or an appointee of the
presiding officer of the meeting, shall act as the Secretary of the meeting.
VOTING
Section 6. Except as otherwise provided by law or the Restated Certificate
of Incorporation, each stockholder entitled to vote at any meeting shall be
entitled to one vote, in person or by proxy, for each share held of record on
the record date fixed as provided in Section 4 of Article V of these By-Laws for
determining the stockholder entitled to vote at such meeting.
At all meetings of stockholders for the election of directors, each
director shall be elected by the vote of the majority of the votes cast with
respect to that director's election, provided that if, as of the 10th day
preceding the date the Corporation first mails its notice of meeting for such
meeting to the stockholders of the Corporation, the number of nominees exceeds
the number of directors to be elected (a "Contested Election"), the directors
shall be elected by the vote of a plurality of the votes cast. For purposes of
this Section 6, a majority of votes cast shall mean that the number of votes
cast "for" a director's election exceeds the number of votes cast "against" that
director's election (with "abstentions" and "broker nonvotes" not counted as a
vote cast either "for" or "against" that director's election).
All matters other than the election of directors shall, unless otherwise
provided by the Restated Certificate of Incorporation, these By-Laws, the rules
or regulations of any stock exchange applicable to the corporation, or
applicable law or pursuant to any regulation applicable to the corporation or
its securities, be decided by the affirmative vote of the holders of a majority
in voting power of the shares of stock of the corporation which are present in
person or by proxy and entitled to vote thereon.
Elections of directors need not be by written ballot; provided, however,
that by resolution duly adopted, a vote by written ballot may be required.
PROXIES
Section 7. Each stockholder entitled to vote at a meeting of stockholders
or to express consent or dissent to corporate action in writing without a
meeting may authorize another person or persons to act for him by proxy, but no
such proxy shall be voted or acted upon after three years from its date, unless
the proxy provides for a longer period. A proxy shall be irrevocable if it
states that it is irrevocable and if, and only as long as, it is coupled with an
interest sufficient in law to support an irrevocable power. A stockholder may
revoke any proxy which is not irrevocable by attending the meeting and voting in
person or by filing an instrument revoking the proxy or by delivering a proxy in
accordance with applicable law bearing a later date to the Secretary of the
corporation. In order to be exercised at a meeting of stockholders, proxies
shall be delivered to the Secretary of the corporation or his representative at
or before the time of such meeting.
INSPECTORS
Section 8. At each meeting of the stockholders the polls shall be opened
and closed; the proxies and ballots shall be received and be taken in charge,
and all questions touching the
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qualification of voters and the validity of proxies and the acceptance or
rejection of votes shall be decided by at least one Inspector. The Inspector or
Inspectors for each such meeting shall be appointed by the Board before the
meeting, or in default thereof by the presiding officer at the meeting, and
shall be sworn to the faithful performance of their duties. If any of the
Inspectors previously appointed shall fail to attend or refuse or be unable to
serve, substitutes shall be appointed by the presiding officer. In the event
there is more than one Inspector for any meeting, a majority of the Inspectors
for that meeting shall have power to make any decision of the Inspectors.
CONDUCT OF MEETINGS
Section 9. The date and time of the opening and the closing of the polls
for each matter upon which the stockholders will vote at a meeting shall be
announced at the meeting by the chairman of the meeting. The Board may adopt by
resolution such rules and regulations for the conduct of the meeting of
stockholders as it shall deem appropriate. Except to the extent inconsistent
with such rules and regulations as adopted by the Board, the chairman of any
meeting of stockholders shall have the right and authority to prescribe such
rules, regulations and procedures and to do all such acts as, in the judgment of
such chairman, are appropriate for the proper conduct of the meeting. Such
rules, regulations or procedures, whether adopted by the Board or prescribed by
the chairman of the meeting, may include, without limitation, the following: (i)
the establishment of an agenda or order of business for the meeting, (ii) rules
and procedures for maintaining order at the meeting and the safety of those
present, (iii) limitations on attendance at or participation in the meeting to
stockholders of record of the corporation, their duly authorized and constituted
proxies or such other persons as the chairman of the meeting shall determine;
(iv) restrictions on entry to the meeting after the time fixed for the
commencement thereof; (v) limitations on the time allotted to questions or
comments by participants; and (vi) adjournment of the meeting either by the
chairman of the meeting or by vote of the shares present in person or by proxy
at the meeting. Unless and to the extent determined by the Board or the chairman
of the meeting, meetings of stockholders shall not be required to be held in
accordance with the rules of parliamentary procedure.
ADVANCE NOTICE
Section 10. A. (1) Nominations of persons for election to the Board and
the proposal of business to be considered by the stockholders may be made at an
annual meeting of stockholders only (a) pursuant to the corporation's notice of
meeting (or any supplement thereto), (b) by or at the direction of the Board or
(c) by any stockholder of the corporation who was a stockholder of record of the
corporation at the time the notice provided for in this Section 10 is delivered
to the Secretary of the corporation, who is entitled to vote at the meeting and
who complies with the notice procedures set forth in this Section 10.
(2) For nominations or other business to be properly brought before
an annual meeting by a stockholder pursuant to clause (c) of paragraph (A)(1) of
this Section 10, the stockholder must have given timely notice thereof in
writing to the Secretary of the corporation and any such proposed business other
than the nominations of persons for election to the Board must constitute a
proper matter for stockholder action. To be timely, a stockholder's notice shall
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be delivered to the Secretary 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 seventy days after such anniversary date, notice by the
stockholder 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 announcement of the date of
such meeting is first made by the corporation). 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. Such stockholder's notice shall set forth: (a) as to
each person whom the stockholder proposes to nominate for election as a
director, all information relating to such person that is required to be
disclosed in solicitations of proxies for election of directors in an election
contest, or is otherwise required, in each case pursuant to Regulation 14A under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and Rule
14a-11 thereunder (and such person's written consent to being named in the proxy
statement as a nominee and to serving as a director if elected); (b) as to any
other business that the stockholder proposes to bring before the meeting, a
brief description of the business desired to be brought before the meeting, 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 By-Laws of the corporation, the language of the proposed amendment),
the reasons for conducting such business at the meeting and any material
interest in such business of such stockholder and the beneficial owner, if any,
on whose behalf the proposal is made; and (c) as to the stockholder giving the
notice and the beneficial owner, if any, on whose behalf the nomination or
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 and number
of shares of capital stock of the corporation which are owned beneficially and
of record by such stockholder and such beneficial owner, (iii) a representation
that the 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 such business or nomination, and (iv) a representation
whether the stockholder or the beneficial owner, if any, intends or is 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 or elect the nominee and/or (b)
otherwise to solicit proxies from stockholders in support of such proposal or
nomination. The corporation may require any proposed nominee to furnish such
other information as it may reasonably require to determine the eligibility of
such proposed nominee to serve as a director of the corporation.
(3) Notwithstanding anything in the second sentence of paragraph
(A)(2) of this Section 10 to the contrary, in the event that the number of
directors to be elected to the Board of the corporation at an annual meeting is
increased and there is no public 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 10 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.
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B. Only such business shall be conducted at a special meeting of
stockholders as shall have been brought before the meeting pursuant to the
corporation's notice of meeting. Nominations of persons for election to the
Board 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 or (2) provided that the Board 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 10 is delivered to the Secretary of the corporation, who is
entitled to vote at the meeting and upon such election and who complies with the
notice procedures set forth in this Section 10. In the event the corporation
calls a special meeting of stockholders for the purpose of electing one or more
directors to the Board, 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 paragraph (A)(2) of this Section 10 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 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.
C. (1) Only such persons who are nominated in accordance with the
procedures set forth in this Section 10 shall be eligible to be elected at an
annual or special meeting of stockholders of the corporation to serve as
directors and only such business shall be conducted at a meeting of stockholders
as shall have been brought before the meeting in accordance with the procedures
set forth in this Section 10. Except as otherwise provided by law, the chairman
of the meeting shall have the power and duty (a) to determine whether a
nomination or any business proposed to be brought before the meeting was made or
proposed, as the case may be, in accordance with the procedures set forth in
this Section 10 (including whether the stockholder or beneficial owner, if any,
on whose behalf the nomination or proposal is made, solicited (or is part of a
group which solicited) or did not so solicit, as the case may be, proxies in
support of such stockholder's nominee or proposal in compliance with such
stockholder's representation as required by clause (A)(2)(c)(iv) of this Section
10) and (b) if any proposed nomination or business was not made or proposed in
compliance with this Section 10, to declare that such nomination shall be
disregarded or that such proposed business shall not be transacted.
Notwithstanding the foregoing provisions of this Section 10, if the stockholder
(or a qualified representative of the stockholder) does not appear at the annual
or special meeting of stockholders of the corporation to present a nomination or
business, such nomination shall be disregarded and such proposed business shall
not be transacted, notwithstanding that proxies in respect of such vote may have
been received by the corporation.
(2) For purposes of this Section 10, "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) Notwithstanding the foregoing provisions of this Section
10, a stockholder shall also comply with all applicable requirements of the
Exchange Act and the rules and regulations thereunder with respect to the
matters set forth in this Section 10. Nothing in this Section 10 shall be deemed
to affect any rights (a) of stockholders to request inclusion of proposals in
the corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act
or (b) of the holders of any series of Preferred Stock to elect directors
pursuant to any applicable provisions of the Restated Certificate of
Incorporation.
ARTICLE II
BOARD OF DIRECTORS NUMBERS;
METHOD OF ELECTION;
TERMS OF OFFICE AND QUALIFICATION
Section 1. The business and affairs of the corporation shall be managed
under the direction of the Board. The number of directors which shall constitute
the entire Board shall not be less than eight nor more than sixteen and shall be
determined from time to time by resolution adopted by a majority of the entire
Board.
Except as may otherwise be determined in the good faith judgment of the
Board with respect to any particular person, after due consideration of all
relevant factors (including, but not limited to, the particular individual at
issue and the background and experience of the individual), no person who shall
have attained the age of 72 shall be eligible for election or reelection, as the
case may be, as a director of the corporation.
In order for any incumbent director to become a nominee of the Board for
further service on the Board, such person shall submit an irrevocable
resignation contingent on (i) that person not receiving a majority of the votes
cast in an election that is not a Contested Election, and (ii) acceptance of
that resignation by the Board in accordance with the policies and procedures
adopted by the Board for such purpose. In the event an incumbent director fails
to receive a majority of the votes cast in an election that is not a Contested
Election, the Compensation/Nominating/Governance Committee of the Board or such
other committee designated by the Board pursuant to Article III of these Bylaws
shall make a recommendation to the Board as to whether to accept or reject the
resignation of such incumbent director, or whether other action should be taken.
The Board shall act on the resignation, taking into account the committee's
recommendation, and publicly disclose (by a press release and filing an
appropriate disclosure with the Securities and Exchange Commission) its decision
regarding the resignation and, if such resignation is rejected, the rationale
behind the decision, within 90 days following certification of the election
results. The committee in making its recommendation and the Board in making its
decision may each consider any factors and other information that they consider
appropriate and relevant.
If the Board accepts a director's resignation pursuant to this Article II,
Section 1, or if a nominee for director is not elected and the nominee is not an
incumbent director, then, subject to the other provisions of this Article II,
Section 1, the Board may fill the resulting vacancy or may decrease the size of
the Board pursuant to these Bylaws. Any director may resign at any time upon
notice given in writing or by electronic transmission to the Corporation. Such
resignation shall take effect at the time specified therein (and if no time be
specified, at the time of its receipt
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by the Board) and unless otherwise specified therein, no acceptance of such
resignation shall be necessary to make it effective. Except as otherwise
provided by law or the Restated Certificate of Incorporation, any vacancy
occurring in the Board, for whatever reason, may be filled by a majority of the
remaining members of the Board, although less than a quorum, or by a sole
remaining director, and each director so elected shall hold office until the
expiration of the term of the director whom he or she has replaced.
CHAIRMAN OF THE BOARD
Section 2. The Board may annually elect one of its members to be Chairman
and, subject to the requirements of this Section 2, may fill any vacancy in the
position of Chairman at such time and in such manner as the Board may determine.
The Chairman of the Board appointed pursuant to this Article II shall not be an
officer of, or employed in an executive or other capacity by, the corporation.
The Chairman shall preside at meetings of the Board and shall lead the Board in
fulfilling its responsibilities.
The responsibilities of the Chairman appointed pursuant to this Article
II, if any, shall include: (a) organizing and presiding over executive sessions
of the Board; (b) acting as a communication channel between the Board and the
Chief Executive Officer (or, in the absence of the Chief Executive Officer, the
executive officer or officers authorized to act in such capacity); (c) in
collaboration with the Chief Executive Officer, setting the Board's agenda; (d)
serving as a point of contact for stockholders of the corporation who wish to
communicate with the independent directors of the corporation; (e) initiating
and overseeing the Board's annual self-assessment; and (f) such other
responsibilities as may be assigned to the Chairman from time to time by the
Board.
MEETINGS
Section 3. The Board may hold its meetings and have an office in such
place or places within or without the State or Delaware as the Board by
resolution from time to time may determine.
The Board may in its discretion provide for regular or stated meetings of
the Board. Notice of regular or stated meetings need not be given. Special
meetings of the Board shall be held whenever called by direction of the
Chairman, the Chief Executive Officer, the President or any two of the
directors.
Notice of any special meeting shall be given by the Secretary to each
director either by mail or by telegram, facsimile, telephone or other electronic
communication or transmission. If mailed, such notice shall be deemed adequately
delivered when deposited in the United States mails so addressed, with postage
thereon prepaid, at least three days before such meeting. If by telegram, such
notice shall be deemed adequately delivered when the telegram is delivered to
the telegraph corporation at least twenty-four hours before such meeting. If by
facsimile, telephone, or other electronic communication or transmission, such
notice shall be transmitted at least twenty-four hours before such meeting.
Unless otherwise indicated in the notice thereof, any and all business may be
transacted at a special meeting.
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Except as otherwise provided by applicable law, at any meeting at which
every director shall be present, even though without notice, any business may be
transacted. No notice of any adjourned meeting need be given.
The Board shall meet immediately after election, following the Annual
Meeting of Stockholders, for the purpose of organizing, for the election of
corporate officers as hereinafter specified, and for the transaction of any
other business which may come before it. No notice of such meeting shall be
necessary.
QUORUM
Section 4. Except as otherwise expressly required by these By-Laws or by
statute, a majority of the directors then in office (but not less than one-third
of the total number of directors constituting the entire Board) shall be present
at any meeting of the Board in order to constitute a quorum for the transaction
of business at such meeting, and the vote of a majority of the directors present
at any such meeting at which a quorum is present shall be necessary for the
passage of any resolution or for an act to be the act of the Board. In the
absence of a quorum, a majority of the directors present may adjourn such
meeting from time to time until a quorum shall be present. Notice of any
adjourned meeting need not be given.
COMPENSATION OF BOARD OF DIRECTORS
Section 5. Each director (other than a director who is a salaried officer
of the corporation or of any subsidiary of the corporation), in consideration of
his serving as such, shall be entitled to receive from the corporation such
amount per annum and such fees for attendance at meetings of the Board or of any
committee of the Board (a "Committee"), or both, as the Board shall from time to
time determine. The Board may likewise provide that the corporation shall
reimburse each director or member of a Committee for any expenses incurred by
him on account of his attendance at any such meeting. Nothing contained in this
Section shall be construed to preclude any director from serving the corporation
in any other capacity and receiving compensation therefor.
ARTICLE III
COMMITTEES OF THE BOARD
COMMITTEES
Section 1. The Board shall elect from the directors an Audit Committee and
any other Committee which the Board may by resolution prescribe. Any such other
Committee shall be comprised of such persons and shall possess such authority as
shall be set forth in such resolution.
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PROCEDURE
Section 2. (1) Each Committee shall fix its own rules of procedure and
shall meet where and as provided by such rules. Unless otherwise stated in these
By-Laws, a majority of a Committee shall constitute a quorum.
(2) In the absence or disqualification of a member of any
Committee, the members of such Committee present at any meeting, and not
disqualified from voting, whether or not they constitute a quorum, may
unanimously appoint another member of the Board to act at the meeting in the
place of any such absent or disqualified member. Fees in connection with such
appointments shall be established by the Board.
REPORTS TO THE BOARD
Section 3. All completed actions by the Audit Committee shall be reported
to the Board at the next succeeding Board meeting and shall be subject to
revision or alteration by the Board, provided, that no acts or rights of third
parties shall be affected by any such revision or alteration.
AUDIT COMMITTEE
Section 4. The Board shall elect from among its members an Audit Committee
consisting of at least three members. The Board shall appoint a chairman of said
Committee who shall be one of its members. The Audit Committee shall have such
authority and duties as the Board by resolution shall prescribe. In no event
shall a director who is also an officer or employee of the corporation of any of
its subsidiary companies serve as a member of such Committee. The Chief
Executive Officer shall have the right to attend (but not vote at) each meeting
of such Committee.
ARTICLE IV
OFFICERS
GENERAL PROVISIONS
Section 1. The corporate officers of the corporation shall consist of a
Chief Executive Officer, a Secretary and a Treasurer and such other officers as
the Board may from time to time designate, including but not limited to the
following: a Chairman who shall be chosen from the Board (unless appointed
pursuant to Article II above); one or more Vice Chairmen who shall be chosen
from the Board; a President; one or more Executive Vice Presidents, Senior Vice
Presidents, Vice Presidents and Assistant Vice Presidents; a General Counsel;
and one or more Assistant Secretaries, one or more Assistant Treasurers, and/or
a Controller. Insofar as permitted by statute, the same person may hold two or
more offices. All officers chosen by the Board shall each have such powers and
duties as generally pertain to their respective offices, subject to the specific
provisions of this Article IV.
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The Chief Executive Officer, the Secretary, the Treasurer and any other
officers of the corporation shall be elected by the Board. Each such officer
shall hold office until his successor is elected or appointed and qualified or
until his earlier death, resignation or removal.
Any officer may be removed, with or without cause, at any time by the
Board.
A vacancy in any office may be filled for the unexpired portion of the
term in the same manner as provided in these By-Laws for election or appointment
to such office.
POWERS AND DUTIES OF THE CHIEF EXECUTIVE OFFICER
Section 2. The Chief Executive Officer shall have general charge and
management of the affairs, property and business of the corporation, subject to
direction of the Board and the provisions of these By-Laws. The Chief Executive
Officer or in his absence such other individual as the Board may select, shall
preside at all meetings of the stockholders. He shall also preside at meetings
of the Board and in his absence the Board shall appoint one of their number to
preside.
The Chief Executive Officer shall perform all duties assigned to him in
these By-Laws and such other duties as may from time to time be assigned to him
by the Board.
POWERS AND DUTIES OF OTHER OFFICERS
Section 3. The Chairman appointed pursuant to this Article IV, if any,
shall perform such duties as may from time to time be assigned to him by the
Board or the Chief Executive Officer.
Section 4. Each Vice Chairman, if any, shall perform such duties as may
from time to time be assigned to him by the Board or the Chief Executive
Officer.
Section 5. The President, if any, shall perform such duties as may from
time to time be assigned to him by the Board or the Chief Executive Officer.
Section 6. Each Executive Vice President shall perform such duties as may
from time to time be assigned to him by the Board or the Chief Executive
Officer.
Section 7. Each Senior Vice President shall perform such duties as may
from time to time be assigned to him by the Board or the Chief Executive
Officer.
Section 8. Each Vice President and Assistant Vice President shall perform
such duties as may from time to time be assigned to him by the Board or the
Chief Executive Officer or any Senior Vice President.
Section 9. The General Counsel shall have general supervision and control
of all of the corporation's legal business. He shall perform such duties as may
from time to time be assigned to him by the Board or the Chief Executive
Officer.
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Section 10. The Secretary or an Assistant Secretary shall record the
proceedings of all meetings of the Board and the stockholders, in books kept for
that purpose. The Secretary shall be the custodian of the corporate seal, and he
or an Assistant Secretary shall affix the same to and countersign papers
requiring such acts; and he and the Assistant Secretaries shall perform such
other duties as may be required by the Board or the Chief Executive Officer.
Section 11. The Treasurer and Assistant Treasurers shall have care and
custody of all funds of the corporation and disburse and administer the same
under the direction of the Board or the Chief Executive Officer and shall
perform such other duties as the Board or the Chief Executive Officer shall
assign to them.
Section 12. The Controller shall maintain adequate records of all assets,
liabilities and transactions of the corporation and see that audits thereof are
currently and regularly made, and he shall perform such other duties as may be
required by the Board or the Chief Executive Officer.
SALARIES AND APPOINTMENTS
Section 13. The salaries of corporate officers shall be fixed by the
Board or by any Committee of the Board to which the Board delegates such
authority, except that the fixing of salaries below certain levels, determinable
from time to time by the Board or any such Committee, may in the discretion of
the Board or any such Committee be delegated to the Chief Executive Officer,
subject to the approval of the Board or any such Committee.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 14. (1) The corporation shall indemnify and hold harmless, to the
fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person (an "Indemnittee") who was or is made or is
threatened to be made a party or is otherwise involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative, including
appeals (a "proceeding"), by reason of the fact that he, or a person for whom he
is the legal representative, is or was a director or officer of the corporation
or, while a director of officer of the corporation is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation or of a partnership, joint venture, trust, enterprise or nonprofit
entity, including service with respect to employee benefit plans, against all
liability and loss suffered and expenses (including attorneys' fees) reasonably
incurred by such Indemnitee. Notwithstanding the preceding sentence, except as
otherwise provided in paragraph (3) of this Section 14, the corporation shall be
required to indemnify an Indemnitee in connection with a proceeding (or part
thereof) commenced by such Indemnitee only if the commencement of such
proceeding (or part thereof) by the Indemnitee was authorized by the Board.
(2) The corporation shall pay the expenses (including
attorneys' fees) incurred by an Indemnitee in defending any proceeding in
advance of its final disposition, provided, however, that, to the extent
required by law, such payment of expenses in advance of the final disposition of
the proceeding shall be made only upon receipt of an undertaking by the
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Indemnitee to repay all amounts advanced if it should be ultimately determined
that the Indemnitee is not entitled to be indemnified under this Section 14 or
otherwise.
(3) If a claim for indemnification (following the final
disposition of such action, suit or proceeding) or payment of expenses under
this Section 14 is not paid in full within thirty days after a written claim
therefor by the Indemnittee has been received by the corporation, the Indemnitee
may file suit to recover the unpaid amount of such claim and, if successful in
whole or in part, shall be entitled to be paid the expense of prosecuting such
claim. In any such action the corporation shall have the burden of proving that
the Indemnitee is not entitled to the requested indemnification or payment of
expenses under applicable law.
(4) The rights conferred on any Indemnitee by this Section 14
shall not be exclusive of any other rights which such Indemnitee may have or
hereafter acquire under any statute, provision of the Restated Certificate of
Incorporation, these By-Laws, agreement, vote of stockholders or disinterested
directors or otherwise.
(5) The corporation's obligation, if any, to indemnify or to
advance expenses to any Indemnitee who was or is serving at its request as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust, enterprise or nonprofit entity shall be reduced by an amount
such Indemnitee may collect as indemnification or advancement of expenses from
such other corporation, partnership, joint venture, trust enterprise or
nonprofit enterprise.
(6) Any repeal or modification of the foregoing provisions of
this Section 14 shall not adversely affect any right or protection hereunder of
any Indemnitee in respect of any act or omission occurring prior to the time of
such repeal or modification.
(7) This Section 14 shall not limit the right of the
corporation, to the extent and in the manner permitted by law, to indemnify and
to advance expenses to persons other than Indemnitees when and as authorized by
appropriate corporate action.
ARTICLE V
CAPITAL STOCK
CERTIFICATES OF STOCK
Section 1. Form. The shares of the corporation shall be represented by
certificates; provided, however, that the Board of Directors may provide by
resolution or resolutions that some or all of any or all classes or series of
the corporation's stock shall be uncertificated shares. Certificates of stock in
the corporation, if any, shall be signed by or in the name of the corporation by
the President or a Vice President and by the Treasurer or an Assistant Treasurer
or the Secretary or an Assistant Secretary of the corporation. Where a
certificate is countersigned by a transfer agent, other than the corporation or
an employee of the corporation, or by a registrar, the signatures of the
President or a Vice President and the Treasurer or an Assistant Treasurer or the
Secretary or an Assistant Secretary may be facsimiles. 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
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certificate is issued, the certificate may be issued by the corporation with the
same effect as if such officer, transfer agent or registrar were such officer,
transfer agent or registrar at the date of its issue.
TRANSFER OF SHARES
Section 2. Transfers of shares, where shares of stock are represented by
certificates, shall be made only upon the books of the corporation by the
holder, in person, or by power of attorney duly executed and filed with the
Secretary of the corporation, and on the surrender of the certificate or
certificates of such shares, properly assigned, and where shares of stock are
uncertificated, such shares may be transferred in accordance with applicable
law. The corporation may, if and whenever the Board shall so determine, maintain
one or more offices or agencies, each in charge of an agent designated by the
Board, where the shares of the capital stock of the corporation shall be
transferred and/or registered. The Board may also make such additional rules and
regulations as it may deem expedient concerning the issue, transfer and
registration of certificates for shares of the capital stock of the corporation.
LOST, STOLEN OR DESTROYED CERTIFICATES
Section 3. The corporation may issue a new certificate of capital stock of
the corporation in place of any certificate theretofore issued by the
corporation, alleged to have been lost, stolen or destroyed, and the corporation
may, but shall not be obligated to, require the owner of the alleged lost,
stolen or destroyed certificate, or his legal representatives, to give the
corporation a bond sufficient to indemnify it against any claim that may be made
against it on account of the alleged loss, theft or destruction of any such
certificate or the issuance of such new certificate, as the officers of the
corporation may, in their discretion, require.
FIXING OF RECORD DATE
Section 4. In order that the corporation may determine the stockholders
entitled to notice of or to vote at the meeting of stockholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting or entitled to receive payment of any dividend or other
distribution of allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board 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, and which record date: (1) in the case of determination of
stockholders entitled to vote at any meeting of stockholders or adjournment
thereof, shall, unless otherwise required by law, not be more than sixty nor
less than ten days before the date of such meeting; (2) in the case of
determination of stockholders entitled to express consent to corporate action in
writing without a meeting, shall not be more then ten days from the date upon
which the resolution fixing the record date is adopted by the Board; and (3) in
the case of any other action, shall not be more than sixty days prior to such
other action. If no record date is fixed by the Board: (1) the record date for
determining
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stockholders entitled to notice of or to vote at a meeting of stockholders shall
be at the close of business on the day next preceding the day on which notice is
given, or, if notice is waived, at the close of business on the day next
preceding the day on which the meeting is held; (2) the record date for
determining stockholders entitled to express consent to corporate action in
writing without a meeting shall be determined in accordance with Article VI of
these By-Laws; and (3) the record date for determining stockholders for any
other purpose shall be at the close of business on the day on which the Board
adopts the resolution relating thereto. A determination of stockholders of
record entitled to notice of or to vote at a meeting of stockholders shall apply
to any adjournment of the meeting; provided, however, that the Board may fix a
new record date for the adjourned meeting.
ARTICLE VI
CONSENTS TO CORPORATE ACTION
RECORD DATE
Section 1. The record date for determining stockholders entitled to
express consent to corporate action in writing without a meeting shall be as
fixed by the Board or as otherwise established under this Section. Any person
seeking to have the stockholders authorize or take corporate action by written
consent without a meeting shall by written notice addressed to the Secretary and
delivered to the corporation, request that a record date be fixed for such
purpose. The Board may fix a record date for such purpose which shall be no more
than 10 days after the date upon which the resolution is adopted. If the Board
fails within 10 days after the corporation receives such notice to fix a record
date for such purpose, the record date shall be the date after the expiration of
such ten day time period on or by which the first written consent is or shall
have been delivered to the corporation in the manner described in Section 2
below unless prior action by the Board is required under the General Corporation
Law of Delaware, in which event the record date shall be at the close of
business on the day on which the Board adopts the resolution taking such prior
action.
PROCEDURES
Section 2. Every written consent purporting to take or authorizing the
taking of corporate action and/or related revocations (each such written consent
and related revocation is referred to in this Article VI as a "Consent") shall
bear the date of signature of each stockholder who signs the Consent, and no
Consent shall be effective to take the corporate action referred to therein
unless, within 60 days of the earliest dated Consent delivered in the manner
required by this Section 2, Consents signed by a sufficient number of
stockholders to take such action are delivered to the corporation.
Consents shall be delivered to the corporation by delivery to its
registered office in the State of Delaware, its principal place of business, or
an officer or agent of the corporation having custody of the book in which
proceedings of meetings of stockholders are recorded. Delivery to the
corporation's registered office shall be made by hand or by certified or
registered mail, return receipt requested.
In the event of the delivery to the corporation of a Consent, the
Secretary of the corporation shall provide for the safe-keeping of such Consent
and shall promptly conduct such ministerial review of the sufficiency of the
Consents and of the validity of the action to be taken by shareholder consent as
he deems necessary or appropriate, including, without limitation,
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whether the holders of a number of shares having the requisite voting power to
authorize or take the action specified in the Consent have given consent;
provided, however, that if the corporate action to which the Consent relates is
the removal or replacement of one or more members of the Board, the Secretary of
the corporation shall promptly designate two persons, who shall not be members
of the Board, to serve as Inspectors with respect to such Consent and such
Inspectors shall discharge the functions of the Secretary of the corporation
under this Section 2. If after such investigation the Secretary or the
Inspectors (as the case may be) shall determine that the Consent is valid and
that the action therein specified has been validly authorized, that fact shall
forthwith be certified on the records of the corporation kept for the purpose of
recording the proceedings of meetings of stockholders, and the Consent shall be
filed in such records, at which time the Consent shall become effective as
stockholder action. In conducting the investigation required by this Section 2,
the Secretary or the Inspectors (as the case may be) may, at the expense of the
corporation, retain special legal counsel and any other necessary or appropriate
professional advisors, and such other personnel as they may deem necessary or
appropriate to assist them, and shall be fully protected in relying in good
faith upon the opinion of such counsel of advisors.
ARTICLE VII
MISCELLANEOUS
DIVIDENDS AND RESERVES
Section 1. Dividends upon the capital stock of the corporation may be
declared as permitted by law by the Board at any regular or special meeting.
Before payment of any dividend or making any distribution of profits, there may
be set aside out of the surplus or net profits of the corporation such sum or
sums as the Board, from time to time, in their absolute discretion, think proper
as a reserve fund to meet contingencies, or for such other purposes as the Board
shall think conducive to the interests of the corporation, and any reserve so
established may be abolished and restored to the surplus account by like action
of the Board.
SEAL
Section 2. The seal of the corporation shall bear the corporate name of
the corporation, the year of its incorporation and the words "Corporate Seal,
Delaware".
WAIVER
Section 3. Whenever any notice whatever is required to be given by statute
or under the provisions of the Restated Certificate of Incorporation or these
By-Laws, a waiver thereof in writing signed by the person entitled to notice, or
a waiver by electronic transmission by the person entitled to notice, whether
before or after the time stated therein, shall be deemed equivalent to notice.
Neither the business to be transacted at, nor the purpose of, any annual or
special meeting of the stockholders, the Board or any committee of the Board, as
the case may be, need be specified in any waiver of notice of such meeting.
FISCAL YEAR
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Section 4. The fiscal year of the corporation shall begin with January
first and end with December thirty-first.
CONTRACTS
Section 5. Except as otherwise required by law, the Restated Certificate
of Incorporation or these By-Laws, any contracts or other instruments may be
executed and delivered in the name and on the behalf of the corporation by such
officer or officers of the corporation as the Board may from time to time
direct. Such authority may be general or confined to specific instances as the
Board may determine. The Chief Executive Officer or any of the Chairman or the
President and any Vice President may execute bonds, contracts, deeds, leases and
other instruments to be made or executed for or on behalf of the corporation.
Subject to any restrictions imposed by the Board, the Chief Executive Officer or
any of the Chairman or the President or any Vice President of the corporation
may delegate contractual powers to others under his jurisdiction, it being
understood, however, that any such delegation of power shall not relieve such
officer of responsibility with respect to the exercise of such delegated power.
PROXIES
Section 6. Unless otherwise provided by resolution adopted by the Board,
the Chief Executive Officer or any of the Chairman or the President and any Vice
President may from time to time appoint an attorney or attorneys or agent or
agents of the corporation, in the name and on behalf of the corporation, to cast
the votes which the corporation may be entitled to cast as the holder of stock
or other securities in any other corporation or other entity, any of whose stock
or other securities may be held by the corporation, at meetings of the holders
of the stock or other securities of such other corporation or other entity, or
to consent in writing, in the name of the corporation as such holder, to any
action by such other corporation or other entity, and may instruct the person or
persons so appointed as to the manner of casting such votes or giving such
consent, and may execute or cause to be executed in the name and on behalf of
the corporation and under its corporate seal or otherwise, all such written
proxies or other instruments as he may deem necessary or proper in the premises.
AMENDMENTS
Section 7. The Board from time to time shall have the power to make,
alter, amend or repeal any and all of these By-Laws, but any By-Laws so made,
altered or repealed by the board may be amended, altered or repealed by the
stockholders.
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