Exhibit 3(b)
NATIONAL SERVICE INDUSTRIES, INC.
BY - LAWS
(as amended and restated October 16, 2001)
(A Delaware Corporation)
ARTICLE ONE
OFFICES AND AGENT
1.1 Registered Office and Agent. The registered office of the Corporation
within the State of Delaware shall be in the City of Wilmington, County of New
Castle, and the name of the registered agent in charge thereof is Corporation
Service Company.
1.2 Other Offices. In addition to its registered office within the State
of Delaware, the Corporation may also have offices at such other places, both
within and without the State of Delaware, as the Board of Directors may, from
time to time determine or the business of the Corporation may require or make
desirable.
ARTICLE TWO
STOCKHOLDERS' MEETINGS
2.1 Place of Meetings. All meetings of the stockholders for the election
of directors or for any other purpose shall be held at any place either within
or without the State of Delaware as shall be designated from time to time by the
Board of Directors or, if it fails to act, the Chairman of the Board, or if he
fails to act, the President, and shall be stated in the notice of meeting or a
duly executed waiver thereof.
2.2 Quorum, Adjournment. The holders of one-third of the voting power of
the stock of the Corporation issued and outstanding and entitled to vote at a
meeting of stockholders, present in person or represented by proxy, shall
constitute a quorum at all meetings of the stockholders for the transaction of
business except as otherwise provided by the Delaware General Corporation Law or
by the Corporation's Restated Certificate of Incorporation, as amended from time
to time ("Certificate of Incorporation"). If, however, a quorum shall not be
present or represented at any meeting of the stockholders, the stockholders
entitled to vote thereat shall have the power to adjourn the meeting from time
to time, without notice other than announcement at the meeting, until a quorum
shall be present. At such adjourned meeting at which a quorum shall be present,
any business may be transacted which might have been transacted at the meeting
as originally called. If the adjournment is for more than thirty days, or, if
after adjournment a new record date is set, a notice of the adjourned meeting
shall be given to each stockholder of record entitled to vote at the meeting.
2.3 Conduct of Meetings. At each meeting of stockholders, the Chairman of
the Board shall act as chairman of the meeting. In the absence or inability or
refusal to act of the Chairman of the Board, the Vice Chairman of the Board, or
if a Vice Chairman has not been elected, the President, shall act as chairman of
the meeting. The Secretary or, in his absence, inability or refusal to act, such
person as the chairman of the meeting shall appoint shall act as secretary of
the meeting and keep the minutes thereof.
2.4 Order of Business. The order of business at all meetings of the
stockholders shall be as determined by the chairman of the meeting.
2.5 Voting. Except as otherwise provided by statute or the Corporation's
Certificate of Incorporation, each stockholder of the Corporation shall be
entitled at each meeting of stockholders to one vote for each share of capital
stock of the Corporation standing in his name on the list of stockholders of the
Corporation on the record date fixed as provided in these By-Laws, as amended
from time to time ("By-Laws"). Each stockholder entitled to vote at any meeting
of stockholders may authorize another person or persons to act for him by a
proxy which is in writing or is transmitted as permitted by law, including,
without limitation, electronically, via telegram, internet, interactive voice
response system, or other means of electronic transmission executed or
authorized by such stockholders or his attorney-in-fact and bearing a date not
more than three (3) years prior to said meeting, unless said instrument provides
for a longer period. Any such proxy shall be delivered to the secretary of the
meeting at or prior to the time designated in the order of business for so
delivering such proxies. Any proxy transmitted electronically shall set forth
information from which it can be determined by the secretary or voting inspector
of the meeting that such electronic transmission was authorized by the
stockholder. At all meetings of stockholders for the election of directors a
plurality of the votes cast shall be sufficient to elect. All other elections
and questions shall, unless otherwise provided by law or in the Corporation's
Certificate of Incorporation or these By-Laws, be decided by the vote of the
holders of a majority of the outstanding shares of stock entitled to vote
thereon present in person or by proxy at the meeting. Unless required by
statute, or determined by the chairman of the meeting to be advisable, the vote
on any question need not be by ballot. On a vote by ballot, each ballot shall be
signed by the stockholder voting, or by his proxy, if there be such proxy, and
shall state the number of shares voted.
2.6 List of Stockholders. A complete list of the stockholders entitled to
vote at each meeting of stockholders, arranged in alphabetical order, with the
address of each, and the number of voting shares held by each, shall be prepared
by the Secretary at least ten days before every meeting. Such list shall be open
to the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
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2.7 Inspectors. The Board of Directors may, in advance of any meeting of
stockholders, appoint one or more inspectors to act at such meeting or any
adjournment thereof. If any of the inspectors so appointed shall fail to appear
or act, the chairman of the meeting shall, or if inspectors shall not have been
appointed, the chairman of the meeting may, appoint one or more inspectors. Each
inspector, before entering upon the discharge of his duties, shall take and sign
an oath faithfully to execute the duties of inspector at such meeting with
strict impartiality and according to the best of his ability. The inspectors
shall determine the number of shares of capital stock of the Corporation
outstanding and the voting power of each, the number of shares represented at
the meeting, the existence of a quorum, and the validity and effect of proxies,
and shall receive votes, ballots or consents, hear and determine all challenges
and questions arising in connection with the right to vote, count and tabulate
all votes, ballots or consents, determine the results, and do such acts as are
proper to conduct the election or vote with fairness to all stockholders. On
request of the chairman of the meeting, the inspectors shall make a report in
writing of any challenge, request or matter determined by them and shall execute
a certificate of any fact found by them. No director or candidate for the office
of director shall act as an inspector of an election of directors. Inspectors
need not be stockholders.
2.8 Annual Meeting. The Annual Meeting of the Stockholders of the
Corporation ("Annual Meeting") shall be held at such time and on such date as
shall be designated by the Board of Directors and stated in the notice of
meeting. At such meeting, the stockholders shall elect directors as provided in
the Corporation's Certificate of Incorporation and By-Laws and shall transact
such other business as may properly come before the meeting.
2.9 Notice of Annual Meeting. Except as otherwise expressly required by
statute, written notice of the Annual Meeting stating the date, place and time
of the meeting shall be given to each stockholder entitled to vote thereat, not
less than ten nor more than sixty days prior to the date of the meeting. Notice
is given when deposited in the United States mail, postage prepaid, directed to
the stockholder at his address as it appears on the records of the Corporation.
Notice of any meeting shall not be required to be given to any person (i) who
attends such meeting, except when such person attends the meeting in person or
by proxy for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called or
convened, or (ii) who, either before or after the meeting, shall submit a signed
written waiver of notice, in person or by proxy. Neither the business to be
transacted at, nor the purpose of, an Annual Meeting need be specified in any
written waiver of notice.
2.10 Notice of Stockholder Proposals. (a) At an Annual Meeting, only such
business shall be conducted, and only such proposals shall be acted upon, as
shall have been brought before the Annual Meeting (i) by, or at the direction
of, the Board of Directors or (ii) by any stockholder of the Corporation who
complies with the notice procedures set forth in this Section of these By-Laws.
For a proposal to be properly brought before an Annual Meeting by a stockholder,
the stockholder must have given timely notice thereof in writing to the
Secretary of the Corporation. To be timely, a
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stockholder's notice must be delivered to, or mailed and received at, the
principal executive offices of the Corporation not less than forty-five (45) or
more than seventy-five (75) 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, regardless of any postponements, deferrals, or adjournments of
that meeting to a later date; provided, however, that if during the preceding
year the Corporation did not hold an Annual Meeting or if the date of the Annual
Meeting is advanced more than thirty (30) days prior to or delayed by more than
thirty (30) days after the anniversary of the preceding year's Annual Meeting,
notice by the stockholder to be timely must be so delivered or received not
later than ninety (90) days prior to the scheduled Annual Meeting; and provided,
further, however, that if less than one hundred (100) days' notice or prior
public disclosure of the date of the scheduled Annual Meeting is given or made,
notice by the stockholder to be timely must be so delivered or received not
later than the close of business on the tenth (10th) day following the earlier
of the day on which such notice of the date of the scheduled Annual Meeting was
mailed or the day on which such public disclosure was made. A stockholder's
notice to the Secretary shall set forth as to each matter the stockholder
proposes to bring before the Annual Meeting (i) a brief description of the
proposal desired to be 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 any other stockholders known by such stockholder to be supporting
such proposal, (iii) the class and the number of shares of the Corporation's
stock which are beneficially owned by the stockholder on the date of such
stockholder notice and by any other stockholders known by such stockholder to be
supporting such proposal on the date of such stockholder notice, and (iv) any
financial interest of the stockholder in such proposal.
(b) If the presiding officer of the Annual Meeting determines that a
stockholder proposal was not made in accordance with the terms of this Section,
he shall so declare at the Annual Meeting and any, such proposal shall not be
acted upon at the Annual Meeting.
(c) This provision shall not prevent the consideration and approval
or disapproval at the Annual Meeting of reports of officers, directors and
committees of the Board of Directors, but, in connection with such reports, no
business shall be acted upon at such Annual Meeting unless stated, filed and
received as herein provided.
2.11 Special Meetings. Special meetings of the stockholders ("Special
Meetings"), for any purpose or purposes, unless otherwise prescribed by statute
or by the Certificate of Incorporation, may be called by the Chief Executive
Officer, and shall be called by the President or Secretary at the request in
writing of a majority of the Board of Directors. Such request shall state the
purpose or purposes of the proposed meeting. Business transacted at all Special
Meetings shall be confined to the purposes stated in the notice of meeting.
2.12 Notice of Special Meetings. Except as otherwise expressly required by
statute, written notice of a special meeting, stating the date, time, place, and
purpose or
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purposes thereof, shall be given to each stockholder entitled to vote thereat
not less than ten nor more than sixty days prior to the date of the meeting.
Notice is given when deposited in the United States mail, postage prepaid,
directed to the stockholder at his address as it appears on the records of the
Corporation. Notice of any meeting shall not be required to be given to any
person who attends such meeting, except when such person attends the meeting in
person or by proxy for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business because the meeting is not lawfully
called or convened, or who, either before or after the meeting, shall submit a
signed written waiver of notice, in person or by proxy. Neither the business to
be transacted at, nor the purpose of, a Special Meeting need be specified in any
written waiver of notice.
ARTICLE THREE
BOARD OF DIRECTORS
3.1 General Powers. The business and affairs of the Corporation shall be
managed by or be under the direction of the Board of Directors. The Board of
Directors may exercise all such authority and powers of the Corporation and do
all such lawful acts and things as are not by statute or the Corporation's
Certificate of Incorporation directed or required to be done by the
stockholders.
3.2 Number, Qualification, Term of Office. The number of directors which
constitute the entire Board of Directors of the Corporation shall be fixed by
resolution of the Board of Directors from time to time, but shall in any event
be not less than seven nor more than fifteen. Any decrease in the number of
directors shall be effective at the time of the next succeeding Annual Meeting
unless there shall be vacancies in the Board of Directors at the time the Board
effects such decrease, in which case such decrease may become effective at any
time prior to the next succeeding Annual Meeting to the extent of the number of
vacancies. Directors need not be stockholders. Except as provided in these
By-Laws, directors shall be elected at the Annual Meeting or at a Special
Meeting called for such purpose, and each director shall be elected to hold
office until a successor shall be elected and qualify.
3.3 Election of Directors. Nominations for the election of directors may
be made by the Board of Directors or a nominating committee appointed by the
Board of Directors or by any stockholder entitled to vote in the election of
directors generally. However, any stockholder entitled to vote in the election
of directors generally may nominate one or more persons for election as
directors at a meeting only if written notice of such stockholder's intent to
make such nomination or nominations has been given, either by personal delivery
or by United States mail, postage prepaid, to the Secretary of the Corporation
not later than (i) with respect to an election to be held at an Annual Meeting,
ninety (90) days prior to the anniversary date of the immediately preceding
Annual Meeting; and (ii) with respect to an election to be held at a Special
Meeting for the election of directors, the close of business on the tenth (10th)
day following the date
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on which notice of such meeting is first given to stockholders. Each such notice
shall set forth: (A) the name and address of the stockholder who intends to make
the nomination and of the person or persons to be nominated; (B) 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 nominate the person or persons specified in the
notice; (C) a description of all arrangements or understandings between the
stockholder and each nominee and any other person or persons (naming such person
or persons) pursuant to which the nomination or nominations are to be made by
the stockholder; (D) such other information regarding each nominee proposed by
such stockholder as would be required to be included in a proxy statement filed
pursuant to the proxy rules of the Securities and Exchange Commission as then in
effect; and (E) the consent of each nominee to serve as a director of the
Corporation if so elected. The presiding officer of the meeting shall refuse to
acknowledge the nomination of any person not made in compliance with the
foregoing procedure. The vote necessary to elect directors shall be as set forth
in these By-Laws including, without limitation, Section 2.5 hereof, unless
otherwise required by the Delaware General Corporation Law.
3.4 Vacancies. Unless otherwise provided in the Corporation's Certificate
of Incorporation (or by resolution of the Board of Directors, any vacancy in the
Board of Directors, whether arising from death, resignation, removal, or any
other cause, and any newly created directorship resulting from an increase in
the number of directors, shall be filled exclusively by a majority of the
directors then in office, although less than a quorum, or by the sole remaining
director, and shall not be filled by the stockholders. Each director so elected
shall hold office until his successor shall have been elected and qualified.
3.5 Resignations. Any director of the Corporation may resign at any time
by giving written notice of his resignation to the Corporation. Any such
resignation shall take effect at the time specified therein or, if the time when
it shall become effective shall not be specified therein, immediately upon its
receipt. Unless otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective.
3.6 Committees. (a) The Board of Directors may, by resolution passed by a
majority of the entire Board of Directors, designate one or more committees,
including an executive committee, each committee to consist of one or more of
the directors of the Corporation. The Board of Directors may designate one or
more directors as alternate members of any committee, who may replace any absent
or disqualified member at any meeting of the committee. In addition, in the
absence or disqualification of a member of a committee, the member or members
thereof present at any meeting and not disqualified from voting, whether or not
he or they constitute a quorum, may unanimously appoint another member of the
Board of Directors to act at the meeting in the place of any such absent or
disqualified member.
(b) Except to the extent restricted by the Delaware General
Corporation Law or the Corporation's Certificate of Incorporation, each such
committee, to the extent provided in the resolution creating it, shall have and
may exercise all the
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powers and authority of the Board of Directors and may authorize the seal of the
Corporation to be affixed to all papers which require it. Each such committee
shall serve at the pleasure of the Board of Directors and have such name as may
be determined from time to time by resolution adopted by the Board of Directors.
Each committee shall keep regular minutes of its meetings and report the same to
the Board of Directors.
(c) Except to the extent restricted by the Delaware General
Corporation Law or the Corporation's Certificate of Incorporation, the Executive
Committee, if any, shall, when the Board of Directors is not in session, have
and may exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the Corporation, including, without
limitation, the power and authority to declare a dividend, to authorize the
issuance of stock, and to adopt a certificate of ownership and merger pursuant
to Section 253 of the Delaware General Corporation Law.
3.7 Compensation. The Board of Directors shall have authority to fix the
compensation, including fees and reimbursement of expenses, of directors for
services to the Corporation in any capacity.
ARTICLE FOUR
MEETINGS OF THE BOARD
4.1 Annual Meeting. The newly elected Board shall meet, immediately after
the Annual Meeting at which they were elected, for the purpose of organization
or otherwise, and no notice of such meeting shall be necessary to the newly
elected directors in order legally to constitute the meeting, provided a
majority of the whole Board shall be present.
4.2 Regular Meetings. Regular meetings of the Board shall be held within
six (6) weeks following the end of each fiscal quarter at such time and place as
the Board of Directors may fix. Notice of regular meetings of the Board of
Directors need not be given.
4.3 Special Meetings. Special meetings of the Board may be called by the
Chairman of the Board or the President. Notice of any special meeting shall be
given to each director at least twelve (12) hours before the meeting by
telephone or by being personally delivered or sent by telex, telecopier, or
telegraph, or at least three (3) days before the meeting if delivered by mail at
the address at which the director is most likely to be reached. Such notice
shall be deemed to be delivered when deposited in the United States mail so
addressed, with postage prepaid, or when transmitted if sent by telex,
telecopier or telegraph. Any director may waive notice of any meeting by a
writing signed by the director entitled to the notice and filed with the minutes
or corporate records. The attendance at or participation of the director at a
meeting shall constitute waiver of notice of such meeting, unless the director
at the beginning of the meeting or promptly upon his arrival objects to holding
the meeting or transacting business at the
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meeting. Neither the business to be transacted at, nor the purpose of, any
meeting of the Board of Directors need be specified in the notice or waiver of
notice of such meeting. Special meetings shall be called by the Chairman of the
Board, President or Secretary in like manner and on like notice on the written
request of two directors.
4.4 Place of Meetings. Unless otherwise specified in the notice of any
meeting, meetings of the Board of Directors shall be held at such place or
places, within or without the State of Delaware, as the Board of Directors may
from time to time determine.
4.5 Quorum and Manner of Acting. At all meetings of the Board, one-third
of the total number of directors shall be necessary and sufficient to constitute
a quorum for the transaction of business, and the act of a majority of the
directors present at any meeting at which there is a quorum shall be the act of
the Board of Directors, except as may be otherwise specifically provided by the
Delaware General Corporation Law or by the Certificate of Incorporation or by
these By-Laws. However, directors attending a meeting at which less than a
quorum is present shall have the power to adjourn the meeting. Notice of the
time and place of any such adjourned meeting shall be given to all of the
directors unless such time and place were announced at the meeting at which the
adjournment was taken, in which case such notice shall only be given to the
directors who were not present thereat. At any adjourned meeting at which a
quorum is present, any business may be transacted which might have been
transacted at the meeting as originally called.
4.6 Conduct of Meetings. At each meeting of the Board of Directors, the
Chairman of the Board shall act as chairman of the meeting and preside thereat.
The Secretary or, in his absence, inability or refusal to act, such person as
the chairman of the meeting shall appoint shall act as secretary of the meeting
and keep the minutes thereof.
4.7 Action by Consent. Unless restricted by the Corporation's Certificate
of Incorporation, any action required or permitted to be taken by the Board of
Directors or committee may be taken without a meeting if all members of the
Board of Directors or such committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of the
proceedings of the Board of Directors or committee, as the case may be.
4.8 Telephonic Meeting. Unless restricted by the Corporation's Certificate
of Incorporation, any one or more members of the Board of Directors or any
committee thereof may participate in a meeting of the Board of Directors or such
committee by means of a conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each other.
Participation by such means shall constitute presence in person at a meeting.
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ARTICLE FIVE
OFFICERS
5.1 Offices. The Board of Directors, at its first meeting after each
Annual Meeting of Stockholders, shall elect the officers of the Corporation,
which shall include the following: Chairman of the Board; President; one or more
Vice Presidents, as the Board of Directors shall designate; Secretary; and
Treasurer. The Secretary and the Treasurer may be the same person, and any Vice
President may hold at the same time the office of Secretary and/or Treasurer.
The Board may elect one or more Assistant Secretaries and one or more Assistant
Treasurers as may be necessary or desirable for the business of the Corporation.
The Board may also elect from among its members a Vice Chairman of the Board,
and from among its members or former members, a Chairman Emeritus. The Board may
elect such other officers as it shall deem necessary, who shall hold their
offices for such terms and shall exercise such powers and perform such duties as
shall be determined from time to time by the Board.
5.2 Designation of Chief Executive Officer. The Board of Directors shall
designate either the Chairman of the Board or the President of the Corporation
as the Chief Executive officer of the Corporation. The Chief Executive Officer
shall have authority over the business and affairs of the Corporation and over
all other officers, agents and employees of the Corporation, subject to the
control and direction of the Board of Directors.
5.3 Designation of Chief Operating Officer. The Board of Directors may
designate an officer of the Corporation as the Chief Operating Officer of the
Corporation. The Chief Operating Officer, if designated, shall manage and
operate the business and affairs of the Corporation, subject to the control and
direction of the Board of Directors, and shall report to the Chief Executive
Officer.
5.4 Compensation. The salaries of all officers shall be fixed by or
pursuant to the direction of the Board of Directors.
5.5 Tenure and Removal. Each officer of the Corporation shall hold office
until his successor is chosen and qualifies in his stead, or until his death, or
until he shall have resigned or been removed, as hereinafter provided in these
By-Laws. Any officer elected or appointed by the Board of Directors may be
removed at any time with or without cause by the affirmative vote of a majority
of the Board of Directors.
5.6 Resignations. Any officer of the Corporation may resign at any time by
giving written notice of his resignation to the Corporation. Any such
resignation shall take effect at the time specified therein or, if the time when
it shall become effective shall not be specified therein, immediately upon
receipt. Unless otherwise specified therein, the acceptance of any such
resignation shall not be necessary to make it effective.
5.7 Vacancies. If the office of any officer becomes vacant by reason of
death,
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resignation, retirement, disqualification, removal from office, or otherwise,
the Board of Directors may fill each such vacancy for the unexpired term in
respect of which such vacancy occurred.
5.8 Chairman of the Board. (a) The Chairman of the Board shall be elected
from among the members of the Board of Directors and shall be an officer of the
Corporation. The Chairman shall preside at all meetings of the Board of
Directors and of the stockholders. The Chairman shall have such powers and
duties as an officer of the Corporation as provided by these By-Laws and as the
Board of Directors may from time to time prescribe.
(b) The Chairman may sign, execute, acknowledge and deliver, in the
name and on behalf of the Corporation, all stock certificates, deeds, mortgages,
bonds, contracts, documents and instruments, except where the signing thereof
shall be expressly and exclusively delegated to some other officer or agent by
the Board of Directors or by these By-Laws, or required by law to be otherwise
signed or executed.
5.9 Chairman Emeritus. The Board of Directors may elect a former Chairman
of the Board as Chairman Emeritus. The Chairman Emeritus shall be an honorary
position, reflecting outstanding service and devotion to the Corporation. The
Chairman Emeritus shall advise and consult with the Board of Directors,
committees of the Board of Directors, and the President, on matters of interest
to the Corporation, and shall perform such other duties as the Board of
Directors may from time to time prescribe.
5.10 Vice Chairman of the Board. The Vice Chairman of the Board, if one
shall have been elected from among the members of the Board, shall, in the
absence of the Chairman or in the event of the Chairman's refusal or inability
to act, preside at all meetings of the Board of Directors and stockholders, and
shall perform such other duties as the Board of Directors may from time to time
prescribe.
5.11 President. (a) The President shall have such powers and shall perform
such duties as are provided by these By-Laws and as the Board of Directors may
from time to time prescribe. The President shall, in the Chairman's absence,
inability or refusal to act, perform the duties of the Chairman, other than
duties to be performed by the Vice Chairman (if one shall have been elected) as
prescribed under or pursuant to these By-Laws. When so acting, the President
shall have all of the powers of and be subject to all the restrictions upon the
Chairman, including the powers and restrictions applicable to the Chief
Executive Officer if the Chairman serves in that capacity.
(b) The President may sign, execute, acknowledge and deliver, in the
name and on behalf of the Corporation, all stock certificates, deeds, mortgages,
bonds, contracts, documents and instruments, except where the signing thereof
shall be expressly and exclusively delegated to some other officer or agent by
the Board of Directors or by these By-Laws or required by law to be otherwise
signed or executed.
5.12 Vice President. (a) Each Vice President shall have such powers and be
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required to perform such duties as the Board of Directors or the Chief Executive
Officer may from time to time prescribe.
(b) The Board of Directors may designate one or more of the Vice
Presidents as Executive Vice President. The Executive Vice President (or, if
more than one Executive Vice President has been designated, the Executive Vice
President specified by the Board of Directors), shall, in the President's
absence or disability or during a vacancy in the office of the President,
perform all of the duties of the President. When so acting, the Executive Vice
President shall have all the powers of, and be subject to all of the
restrictions upon, the President, including the powers and restrictions
applicable to the Chief Executive Officer if the President serves in that
capacity.
5.13 Secretary. (a) The Secretary shall attend all sessions of the Board
and all meetings of the stockholders and shall record all votes and the minutes
of all such proceedings in a book to be kept for that purpose. The Secretary
shall perform like duties for the Committees of the Board upon requested. He
shall be custodian of the records and the seal of the Corporation and shall
affix and attest the seal to all documents to be executed on behalf of the
Corporation under its seal. He shall give, or cause to be given, notice of all
meetings of the stockholders and of the Board of Directors, in accordance with
the provisions of these By-Laws and as required by the Delaware General
Corporation Law, and shall perform such other duties as the Board of Directors
or the Chief Executive Officer may from time to time prescribe.
(b) The Assistant Secretary shall, in the Secretary's absence,
inability or refusal to act, perform the duties of the Secretary, and shall
perform such other duties as the Board of Directors or the Chief Executive
Officer may from time to time prescribe.
5.14 Treasurer. (a) The Treasurer shall have charge and custody of the
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements, in books belonging to the Corporation, and shall
deposit all corporate monies and other valuable effects in the name and to the
credit of the Corporation in such depositories as may be designated by the Board
of Directors or pursuant to its direction.
(b) The Treasurer shall receive and give receipts for monies due and
payable to the Corporation from any source whatsoever and shall disburse the
funds of the Corporation as may be ordered by the Board, taking proper vouchers
therefor, and shall render to the President and directors, at the regular
meetings of the Board, or whenever they may require it, an account of all of his
transactions as Treasurer and of the financial condition of the Corporation and
in general, perform all duties incident to the office of the Treasurer and such
other duties as the Board of Directors or the Chief Executive Officer may from
time to time prescribe.
(c) The Assistant Treasurer shall, in the Treasurer's absence,
inability or refusal to act, perform the duties of the Treasurer and shall also
perform such other duties as the Board of Directors or the Chief Executive
Officer may from time to time prescribe.
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ARTICLE SIX
STOCK CERTIFICATES AND TRANSFER THEREOF
6.1 Stock Certificates. Every holder of stock in the Corporation shall be
entitled to have a certificate, signed by, or in the name of the Corporation by,
the Chairman of the Board or the President or the Executive Vice President and
by the Treasurer or an Assistant Treasurer or the Secretary or an Assistant
Secretary of the Corporation, certifying the number of shares owned by him in
the Corporation. If the Corporation shall be authorized to issue more than one
class of stock or more than one series of any class, the designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate which the Corporation shall
issue to represent such class or series of stock, provided that, except as
otherwise provided in Section 202 of the Delaware General Corporation Law, in
lieu of the foregoing requirements, there may be set forth on the face or back
of the certificate which the Corporation shall issue to represent such class or
series of stock, a statement that the Corporation will furnish without charge to
each stockholder who so requests the designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights.
6.2 Transfers of Stock. Upon surrender to the Corporation or the transfer
agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, 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 record; provided, however, that the Corporation shall be
entitled to recognize and enforce any lawful restriction on transfer. Whenever
any transfer of stock shall be made for collateral security, and not absolutely,
it shall be so expressed in the entry of transfer if, when the certificates are
presented to the Corporation for transfer, both the transferor and the
transferee request the Corporation to do so.
6.3 Registered Stockholders. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its records as the owner
of shares of stock to receive dividends and to vote as such owner, and
accordingly, shall not be bound to recognize any equitable or other claim to or
interest in such share or shares of stock 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.
6.4 Record Date. (a) In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders, or
to receive payment of any dividend or other distribution or allotment of any
rights or to exercise any rights in respect of any change, conversion or
exchange of stock or for the purpose of any other lawful action, the Board of
Directors may fix a record date, which record date shall
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not precede the date on which the resolution fixing the record date is adopted
and which record date shall not be more than sixty (60) nor less than ten (10)
days before the date of any meeting of stockholders, nor more than sixty (60)
days prior to the time for such other action as hereinbefore described;
provided, however, that if no record date is fixed by the Board of Directors,
the record date for determining stockholders entitled to notice of or to vote at
a meeting of stockholders shall be 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, and,
for determining stockholders entitled to receive payment of any dividend or
other distribution or allotment or rights or to exercise any rights of change,
conversion or exchange of stock or for any other purpose, the record date shall
be at the close of business on the day on which the Board of Directors adopts a
resolution relating thereto.
(b) A determination of stockholders of record entitled to notice of
or to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
(c) In order that the Corporation may determine the stockholders
entitled to consent to corporate action in writing without a meeting, the Board
of Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors, and which date shall not be more than ten (10) days after the date
upon which the resolution fixing the record date is adopted by the Board of
Directors. Any stockholder of record seeking to have the stockholders authorize
or take corporate action by written consent shall, by written notice to the
Secretary, request the Board of Directors to fix a record date. Such notice
shall specify the action proposed to be consented to by stockholders. The Board
of Directors shall promptly, but in all events within ten (10) days after the
date on which such a request is received, adopt a resolution fixing the record
date. If no record date has been fixed by the Board of Directors within ten (10)
days after the date on which such a request is received, the record date for
determining stockholders entitled to consent to corporate action in writing
without a meeting, when no prior action by the Board of Directors is required by
applicable law, shall be the first date on which a signed written consent
setting forth the action taken or proposed to be taken is delivered to the
Corporation. Such delivery to the Corporation shall be made to its registered
office in the State of Delaware, its principal place of business, or any officer
or agent of the Corporation having custody of the book in which proceedings of
meetings of stockholders are recorded, to the attention of the Secretary of the
Corporation. Such delivery shall be by hand or by certified or registered mail,
return receipt requested. If no record date has been fixed by the Board of
Directors and prior action by the Board of Directors is required by applicable
law, the record date for determining stockholders entitled to consent to
corporate action in writing without a meeting shall be the close of business on
the date on which the Board of Directors adopts the resolution taking such prior
action.
In the event of delivery to the Corporation of a written consent or
written
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consents purporting to authorize or take corporate action, and/or related
revocation or revocations, (each such written consent and related revocation,
individually and collectively, a "Consent"), the Secretary of the Corporation
shall provide for the safekeeping of such Consent and shall as soon as
practicable thereafter conduct such reasonable investigation as the Secretary
deems necessary or appropriate for the purpose of ascertaining the validity of
such Consent and all matters incident thereto, including, without limitation,
whether holders of shares having the requisite voting power to authorize or take
the action specified in the Consent have given consent. If after such
investigation the Secretary shall determine that the Consent is sufficient and
valid, that fact shall be certified on the records of the Corporation kept for
the purpose of recording the proceedings of meetings of the stockholders, and
the Consent shall be filed in such records, at which time the Consent shall
become effective as stockholder action.
6.5 Lost Certificates. Any person claiming a certificate of stock to be
lost, stolen or destroyed shall make an affidavit or affirmation of that fact,
in such manner and form as the Board of Directors may from time to time require,
in order to obtain issuance of a new certificate in place thereof. The Board of
Directors may, at its discretion and as a condition precedent to any such
issuance, require any such person to give the Corporation a bond in such sum as
it may direct to indemnify it against any claim that may be made against the
Corporation on account of the alleged loss, theft or destruction of any such
certificate or the issuance of such new certificate. Upon compliance with all
requirements established by the Board of Directors for any such issuance, a new
certificate may be issued.
6.6 Facsimile Signatures. Any or all of the signatures on a 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, it 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.
6.7 Transfer Agents and Registrars. The Board of Directors may appoint, or
authorize any officer or officers to appoint, one or more transfer agents and
one or more registrars.
6.8 Regulations. The Board of Directors may make such additional rules and
regulations, not inconsistent with these By-Laws, as it may deem expedient
concerning the issue, transfer and registration of certificates for shares of
stock of the Corporation.
ARTICLE SEVEN
GENERAL PROVISIONS
7.1 Corporate Seal. The corporate seal shall have inscribed thereon the
name of the Corporation and the words "CORPORATE SEAL" and "DELAWARE."
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7.2 Fiscal Year. The fiscal year shall begin the first day of September in
each year.
7.3 Checks, Notes, Drafts, Etc. All checks, drafts or other demands for
the payment of money and notes of the Corporation shall be signed, endorsed, or
accepted in the name of the Corporation by such officer or officers from time to
time designated by the Board of Directors or by an officer or officers
authorized by the Board of Directors to make such designation.
7.4 Execution of Instruments. The Board of Directors may authorize any
officer or officers, agent or agents, in the name of and on behalf of the
Corporation to enter into or execute and deliver any and all deeds, bonds,
mortgages, contracts and other obligations or instruments, and such authority
may be general or confined to specific instances.
7.5 Dividends and Reserves. Subject to the provisions of statute and the
Corporation's Certificate of Incorporation dividends upon the shares of capital
stock of the Corporation may be declared by the Board of Directors at any
regular or special meeting, and may be paid in cash, in property or in shares of
stock of the Corporation.
7.6 Notice. Whenever under the provisions of these By-Laws written notice
is required to be given to any director, officer, or stockholder, it shall not
be construed to require personal notice, but unless otherwise provided by these
By-Laws, such notice shall be deemed to have been given in writing when
deposited in the United States mail, postage prepaid, directed to such
stockholder, officer or director at his address as it appears on the records of
the Corporation.
7.7 Voting of Stock in Other Corporations. Unless otherwise provided by
resolution of the Board of Directors, the Chief Executive Officer, from time to
time, may (or may appoint one or more attorneys or agents to) cast the votes
which the Corporation may be entitled to cast as a stockholder or otherwise in
any other corporation, any of whose shares or securities may be held by the
Corporation, at meetings of the holders of the shares or other securities of
such other corporation. In the event one or more; attorneys or agents are
appointed, the Chief Executive Officer may instruct the person or persons so
appointed as to the manner of casting such votes or giving such consent. The
Chief Executive Officer may, or may instruct the attorneys or agents appointed
to, execute or cause to be executed in the name and on behalf of the Corporation
and under its seal or otherwise, such written proxies, consents, waivers or
other instruments as may be necessary or proper in the circumstances.
7.8 Indemnification. (a) Each director or officer or former director or
officer of the Corporation or any person who may have served at its request as a
director or officer of another corporation in which it owns shares of capital
stock or of which it is a creditor, shall be indemnified and held harmless by
the Corporation, as hereinafter provided, against any and all liabilities and
counsel fees, costs and legal and other expenses (including, without limitation,
fines, penalties, judgments and amounts paid in
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settlement) reasonably incurred by or imposed on him in connection with or
resulting from any claim, action, suit or proceeding, whether civil, criminal,
administrative or investigative, or any appeal therein, in which he may be or
become involved or with which he may be threatened, as a party or otherwise, by
reason of his now or hereafter being or having heretofore been a director or
officer of the Corporation or of such other corporation, or by reason of his
alleged acts or omissions as a director or officer as aforesaid, whether or not
he continues to be such at the time such liabilities, fees, costs or expenses
shall have been incurred, provided such director or officer shall be indemnified
and held harmless against such liabilities, fees, costs and expenses, only if he
acted in relation to such matters in good faith for a purpose which he
reasonably believed to be in the best interests of the Corporation.
(b) In discharging his duty to the Corporation, a director or
officer, when acting in good faith, may rely upon financial statements of the
Corporation represented to him to be correct by, the officer of the Corporation
having charge of its books of accounts, or stated in a written report by an
independent public or certified public accountant or firm of such accountants
fairly to reflect the financial condition of such corporation.
(c) Termination of a claim, action or proceeding by judgment, order,
settlement (whether with or without court approval), conviction or upon a plea
of guilty or of nolo contendere, or its equivalent, shall not of itself create a
presumption that a director or officer did not meet the standard of conduct set
forth above.
(d) The grant of an indemnification provided herein, unless approved
by a court in a final adjudication of a claim, action, suit, or proceeding or in
connection with a court approved settlement thereof, shall be made pursuant to a
direction of the Board of Directors of the Corporation, but may be granted only
(i) if the Board of Directors, acting by a quorum consisting of directors not
parties to such claim, action, suit or proceeding, shall have determined that in
its opinion the director or officer has met the standard of conduct set forth
above or (ii) in the event such a quorum is not obtainable with due diligence,
then alternatively if the Board of Directors shall have received the written
advice of independent legal counsel selected by it, that in the latter's
judgment such applicable standard of conduct has been met. If several claims,
issues, matters or actions are involved in the grant of indemnification provided
herein, a director or officer may be granted indemnification by the Board of
Directors to the extent of that portion of the liabilities, fees, costs and
expenses which are allocable to such claims, issues, matters or actions in
respect of which it is determined that such director or officer has met the
standard of conduct set forth above.
(e) Expenses incurred with respect to any claim, action, suit or
proceeding may be advanced by the Corporation prior to the final disposition
thereof upon receipt of an undertaking by or on behalf of the director or
officer to repay such amount unless it shall ultimately be determined that he is
entitled to indemnification hereunder.
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(f) The rights to the indemnification provided herein shall inure to
the benefit of the heirs, executors, administrators, or legal representatives of
the persons covered hereby; shall be in addition to any rights to which any such
person may otherwise be entitled by any provision of law, articles of
incorporation, by-law, contract, vote of stockholders or otherwise; and shall be
in addition to and not in restriction or limitation of any other privilege or
power which the Corporation may lawfully exercise with respect to the
indemnification or reimbursement of directors, officers and others.
(g) If any part of this Section shall be found, in any action, suit
or proceeding, to be invalid or ineffective, the validity and the effect of the
remaining parts shall not be affected.
(h) The rights of indemnification provided herein shall not arise
with respect to conduct subsequent to January 5, 1987, which conduct shall be
subject to the indemnification provisions set forth in Article Fifteenth of the
Corporation's Certificate of Incorporation.
7.9 Amendments. These By-Laws may be adopted, amended or repealed (i) by
the affirmative vote of a majority of the directors present at a meeting at
which a quorum is present unless the Certificate of Incorporation or these
By-Laws shall require a vote of a greater number, or (ii) by the affirmative
vote of the holders of two-thirds of the voting power of all of the outstanding
shares of capital stock of the Corporation at any regular or special meeting of
stockholders if notice of the proposed amendment is contained in the notice of
the meeting or waived by all of the stockholders entitled to vote.
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