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EXHIBIT 3.01
RESTATED BY-LAWS
OF
ALUMAX INC.
AS AMENDED ON SEPTEMBER 5, 1996
ARTICLE I
Stockholders
Section 1.1. Annual Meetings. An annual meeting of
stockholders shall be held for the election of Directors at such date, time and
place either within or without the State of Delaware as may be designated by
the Board of Directors from time to time. Any other proper business may be
transacted at the annual meeting.
Section 1.2. Special Meetings. Special meetings of
stockholders may only be called pursuant to a resolution approved by a majority
of the Board of Directors or by the Chairman of the Board, to be held at such
date, time and place either within or without the State of Delaware as may be
stated in the notice of the meeting. Stockholders are not permitted to call a
special meeting or to require the Board of Directors to call a special meeting
of stockholders.
Section 1.3. Notice of Meetings. Whenever stockholders are
required or permitted to take any action at a meeting, a written notice of the
meeting shall be given which shall state the place, date and hour of the
meeting, and, in the case of a special meeting, the purpose or purposes for
which the meeting is called. Unless otherwise provided by law, the written
notice of any meeting shall be given not less than ten (10) nor more than sixty
(60) days before the date of the meeting to each stockholder entitled to vote
at such meeting. If mailed, such notice shall be deemed to be given when
deposited in the United States mail, postage prepaid, directed to the
stockholder at such stockholder's address as it appears on the records of the
Corporation.
Section 1.4. Adjournments. Any meeting of stockholders,
annual or special, may be adjourned from time to time, to reconvene at the same
or some other place, and notice need not be given of any such adjourned meeting
if the time and place thereof are announced at the meeting at which the
adjournment is taken. At the adjourned meeting the Corporation may transact
any business which might have been transacted at the original meeting. If the
adjournment is for more than thirty (30) days, or if after the adjournment a
new record date is fixed for the adjourned meeting, a notice of
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the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
Section 1.5. Quorum. At each meeting of stockholders, except
where otherwise provided by law or the Restated Certificate of Incorporation or
these By-laws, the holders of a majority of the outstanding shares of stock
entitled to vote on a matter at the meeting, present in person or represented
by proxy, shall constitute a quorum. For purposes of the foregoing, where a
separate vote by class or classes is required for any matter, the holders of a
majority of the outstanding shares of such class or classes, present in person
or represented by proxy, shall constitute a quorum to take action with respect
to that vote on that matter. Two or more classes or series of stock shall be
considered a single class if the holders thereof are entitled to vote together
as a single class at the meeting. In the absence of a quorum of the holders of
any class of stock entitled to vote on a matter, the holders of such class so
present or represented may, by majority vote, adjourn the meeting of such class
from time to time in the manner provided by Section 1.4 of these By-laws until
a quorum of such class shall be so present or represented. Shares of its own
capital stock belonging on the record date for the meeting to the Corporation
or to another corporation, if a majority of the shares entitled to vote in the
election of Directors of such other corporation is held, directly or
indirectly, by the Corporation, shall neither be entitled to vote nor be
counted for quorum purposes; provided, however, that the foregoing shall not
limit the right of the Corporation to vote stock, including but not limited to
its own stock, held by it in a fiduciary capacity.
Section 1.6. Organization. Meetings of stockholders shall be
presided over by the Chairman of the Board of Directors, if any, or in the
absence of the Chairman of the Board of Directors by the President, or in the
absence of the President by a Vice President, or in the absence of the
foregoing persons by a chairman designated by the Board of Directors, or in the
absence of such designation by a chairman chosen at the meeting. The
Secretary, or in the absence of the Secretary an Assistant Secretary, shall act
as secretary of the meeting, but in the absence of the Secretary and any
Assistant Secretary, the chairman of the meeting may appoint any person to act
as secretary of the meeting.
The order of business at each such meeting shall be as
determined by the chairman of the meeting. The chairman of the meeting shall
have the right and authority to prescribe such rules, regulations and
procedures and to do all such acts and things as are necessary or desirable for
the proper conduct of the meeting, including, without limitation, the
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establishment of procedures for the maintenance of order and safety,
limitations on the time allotted to questions or comments on the affairs of the
Corporation, restrictions on entry to such meeting after the time prescribed
for the commencement thereof and the opening and closing of the voting polls.
Section 1.7. Inspectors. Prior to any meeting of
stockholders, the Board of Directors or the President shall appoint one or more
inspectors to act at such meeting and make a written report thereof and may
designate one or more persons as alternate inspectors to replace any inspector
who fails to act. If no inspector or alternate is able to act at the meeting
of stockholders, the person presiding at the meeting shall appoint one or more
inspectors to act at the meeting. Each inspector, before entering upon the
discharge of his or her duties, shall take and sign an oath faithfully to
execute the duties of inspector with strict impartiality and according to the
best of his or her ability. The inspectors shall ascertain the number of
shares outstanding and the voting power of each, determine the shares
represented at the meeting and the validity of proxies and ballots, count all
votes and ballots, determine and retain for a reasonable period a record of the
disposition of any challenges made to any determination by the inspectors and
certify their determination of the number of shares represented at the meeting
and their count of all votes and ballots. The inspectors may appoint or retain
other persons to assist them in the performance of their duties. The date and
time of the opening and closing of the polls for each matter upon which the
stockholders will vote at a meeting shall be announced at the meeting. No
ballot, proxy or vote, nor any revocation thereof or change thereto, shall be
accepted by the inspectors after the closing of the polls. In determining the
validity and counting of proxies and ballots, the inspectors shall be limited
to an examination of the proxies, any envelopes submitted therewith, any
information provided by a stockholder who submits a proxy by telegram,
cablegram or other electronic transmission from which it can be determined that
the proxy was authorized by the stockholder, ballots and the regular books and
records of the corporation, and they may also consider other reliable
information for the limited purpose of reconciling proxies and ballots
submitted by or on behalf of banks, brokers, their nominees or similar persons
which represent more votes than the holder of a proxy is authorized by the
record owner to cast or more votes than the stockholder holds of record. If
the inspectors consider other reliable information for such purpose, they
shall, at the time they make their certification, specify the precise
information considered by them, including the person or persons from whom they
obtained the information, when the information was obtained, the means by
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which the information was obtained and the basis for the inspectors' belief
that such information is accurate and reliable.
Section 1.8. Voting; Proxies. Unless otherwise provided in
the Restated Certificate of Incorporation, each stockholder entitled to vote at
any meeting of stockholders shall be entitled to one vote for each share of
stock held by such stockholder which has voting power upon the matter in
question. If the Restated Certificate of Incorporation provides for more or
less than one vote for any share on any matter, every reference in these
By-laws to a majority or other proportion of stock shall refer to such majority
or other proportion of the votes of such stock. 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 such stockholder 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 duly executed proxy shall be irrevocable if it states that it is
irrevocable and if, and only as long as, it is coupled with an interest
sufficient in law to support an irrevocable power, regardless of whether the
interest with which it is coupled is an interest in the stock itself or an
interest in the Corporation generally. A stockholder may revoke any proxy
which is not irrevocable by attending the meeting and voting in person or by
filing an instrument in writing revoking the proxy or another duly executed
proxy bearing a later date with the Secretary of the Corporation. Voting at
meetings of stockholders need not be by written ballot unless the holders of a
majority of the outstanding shares of all classes of stock entitled to vote
thereon present in person or represented by proxy at such meeting shall so
determine. Directors shall be elected by a plurality of the votes of the
shares present in person or represented by proxy at the meeting and entitled to
vote on the election of Directors. In all other matters, unless otherwise
provided by law or by the Restated Certificate of Incorporation or these
By-laws, the affirmative vote of the holders of a majority of the shares
present in person or represented by proxy at the meeting and entitled to vote
on the subject matter shall be the act of the stockholders. Where a separate
vote by class or classes is required, the affirmative vote of the holders of a
majority of the shares of such class or classes present in person or
represented by proxy at the meeting shall be the act of such class or classes,
except as otherwise provided by law or by the Restated Certificate of
Incorporation or these By-laws.
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Section 1.9. Fixing Date for Determination of Stockholders of
Record. In order that the Corporation may determine the stockholders entitled
to notice of or to vote at any meeting of stockholders or any adjournment
thereof, the Board of Directors may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date is
adopted by the Board of Directors, and which record date shall not be more than
sixty (60) nor less than ten (10) days before the date of such meeting. If no
record date is fixed by the Board of Directors, the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders
shall be at the close of business on the day next preceding the day on which
notice is given, or, if notice is waived, at the close of business on the day
next preceding the day on which the meeting is held. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned
meeting.
In order that the Corporation may determine the stockholders
entitled to receive payment of any dividend or other distribution or allotment
of any rights or the stockholders entitled to exercise any rights in respect of
any change, conversion or exchange of stock, or for the purpose of any other
lawful action, the Board of Directors may fix a record date, which record date
shall not precede the date upon which the resolution fixing the record date is
adopted, and which record date shall be not more than sixty (60) days prior to
such action. If no record date is fixed, the record date for determining
stockholders for any such purpose shall be at the close of business on the day
on which the Board of Directors adopts the resolution relating thereto.
Section 1.10. List of Stockholders Entitled to Vote. The
Secretary shall prepare and make, at least ten (10) days before every meeting
of stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, 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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Section 1.11. Advance Notice of Stockholder Proposals. At
any annual or special meeting of stockholders, proposals by stockholders and
persons nominated for election as Directors by stockholders shall be considered
only if proper for action at the meeting and if advance notice thereof has been
timely given as provided herein and such proposals or nominations are otherwise
proper for consideration under applicable law and the Restated Certificate of
Incorporation and By-laws of the Corporation. Notice of any proposal to be
presented by any stockholder or of the name of any person to be nominated by
any stockholder for election as a Director of the Corporation at any meeting of
stockholders shall be delivered to the Secretary of the Corporation at its
principal executive office not less than sixty (60) nor more than ninety (90)
days prior to the date of the meeting; provided, however, that if the date of
the meeting is first publicly announced or disclosed (in a public filing or
otherwise) less than seventy (70) days prior to the date of the meeting, such
advance notice shall be given not more than ten (10) days after such date is
first so announced or disclosed. Public notice shall be deemed to have been
given more than seventy (70) days in advance of the annual meeting if the
Corporation shall have previously disclosed, in these By-laws or otherwise,
that the annual meeting in each year is to be held on a determinable date,
unless and until the Board of Directors determines to hold the meeting on a
different date. Any stockholder who gives notice of any such proposal shall
deliver therewith the text of the proposal to be presented and a brief written
statement of the reasons why such stockholder favors the proposal and setting
forth such stockholder's name and address, the number and class of all shares
of each class of stock of the Corporation beneficially owned by such
stockholder and any material interest of such stockholder in the proposal
(other than as a stockholder). Any stockholder desiring to nominate any person
for election as a Director of the Corporation shall deliver with such notice a
statement in writing setting forth the name of the person to be nominated, the
number and class of all shares of each class of stock of the Corporation
beneficially owned by such person, the information regarding such person
required by paragraphs (a), (e) and (f) of Item 401 of Regulation S-K adopted
by the Securities and Exchange Commission (or the corresponding provisions of
any regulation subsequently adopted by the Securities and Exchange Commission
applicable to the Corporation), such person's signed consent to serve as a
Director of the Corporation if elected, such stockholder's name and address and
the number and class of all shares of each class of stock of the Corporation
beneficially owned by such stockholder. As used herein, shares "beneficially
owned" shall mean all shares as to which such person, together with such
person's affiliates and associates (as defined in Rule
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12b-2 under the Securities Exchange Act of 1934), may be deemed to beneficially
own pursuant to Rules 13d-3 and 13d-5 under the Securities Exchange Act of
1934, as well as all shares as to which such person, together with such
person's affiliates and associates, has the right to become the beneficial
owner pursuant to any agreement or understanding, or upon the exercise of
warrants, options or rights to convert or exchange (whether such rights are
exercisable immediately or only after the passage of time or the occurrence of
conditions). The person presiding at the meeting, in addition to making any
other determinations that may be appropriate to the conduct of the meeting,
shall determine whether a proposal is proper for action at the meeting and
whether such notice has been duly given and shall direct that proposals and
nominees not be considered if such notice has not been given or the proposal is
otherwise not proper for action at the meeting.
ARTICLE II
Board of Directors
Section 2.1. Powers; Number; Qualifications. The business
and affairs of the Corporation shall be managed by or under the direction of
the Board of Directors, except as may be otherwise provided by law or in the
Restated Certificate of Incorporation. The Board of Directors shall consist of
three (3) or more members, the number thereof to be determined from time to
time by the Board of Directors. Directors need not be stockholders.
Section 2.2. Election; Term of Office; Resignation; Removal;
Vacancies. The Directors of the Corporation shall be divided into three
classes, as nearly equal in number as reasonably possible, as determined by the
Board of Directors, with the initial term of office of the first class of such
Directors to expire at the first annual meeting of stockholders thereafter, the
initial term of office of the second class of such Directors to expire at the
second annual meeting of stockholders thereafter and the initial term of office
of the third class of such Directors to expire at the third annual meeting
thereafter, with each class of Directors to hold office until their successors
have been duly elected and qualified. At each annual meeting of stockholders
following such initial classification and election, Directors elected to
succeed the Directors whose terms expire at such annual meeting shall be
elected to hold office for a term expiring at the annual meeting of
stockholders in the third year following the year of their election and until
their successors have been duly elected and qualified. If the number of
Directors is changed, any increase or decrease shall
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be apportioned among the classes so as to maintain or attain a number of
Directors in each class as nearly equal as reasonably possible, but no decrease
in the number of Directors may shorten the term of any incumbent Director. Any
Director may resign at any time upon written notice to the Board of Directors
or to the President or the Secretary of the Corporation. Such resignation
shall take effect at the time specified therein, and unless otherwise specified
therein no acceptance of such resignation shall be necessary to make it
effective. Any Director or the entire Board of Directors may be removed, with
cause in accordance with the provisions of the Restated Certificate of
Incorporation, by the holders of a majority of the shares then entitled to vote
at an election of Directors. Whenever the holders of any class or series of
stock are entitled to elect one or more Directors by the Restated Certificate
of Incorporation, the provisions of the preceding sentence shall apply to the
vote of the holders of the outstanding shares of that class or series and not
to the vote of the outstanding shares as a whole. Unless otherwise provided in
the Restated Certificate of Incorporation or these By-laws, vacancies and newly
created directorships resulting from any increase in the authorized number of
Directors elected by all of the stockholders having the right to vote as a
single class or from any other cause shall be filled by a majority of the
Directors then in office, although less than a quorum, or by the sole remaining
Director. Whenever the holders of any class or classes of stock or series
thereof are entitled to elect one or more Directors by the Restated Certificate
of Incorporation, vacancies and newly created directorships of such class or
classes or series may be filled by a majority of the Directors elected by such
class or classes or series thereof then in office, or by the sole remaining
Director so elected. Any Director elected or appointed to fill a vacancy shall
hold office until the next election of the class of Directors of the Director
which such Director replaced, and until his or her successor is elected and
qualified or until his or her earlier resignation or removal.
Section 2.3. Regular Meetings. Regular meetings of the Board
of Directors may be held at such places within or without the State of Delaware
and at such times as the Board of Directors may from time to time determine,
and if so determined notice thereof need not be given.
Section 2.4. Special Meetings. Special meetings of the Board
of Directors may be held at any time or place within or without the State of
Delaware whenever called by the Chairman of the Board of Directors, if any, by
the President or by a majority of the Directors. Reasonable notice thereof
shall be given by the person or persons calling the meeting.
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Section 2.5. Participation in Meetings by Conference
Telephone Permitted. Unless otherwise restricted by the Restated Certificate
of Incorporation or these By-laws, members of the Board of Directors, or any
committee designated by the Board of Directors, may participate in a meeting of
the Board of Directors or of such committee, as the case may be, by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and participation in
a meeting pursuant to this By-law shall constitute presence in person at such
meeting.
Section 2.6. Quorum; Vote Required for Action. At all
meetings of the Board of Directors a majority of the entire Board of Directors
shall constitute a quorum for the transaction of business. The vote of a
majority of the Directors present at a meeting at which a quorum is present
shall be the act of the Board of Directors unless the Restated Certificate of
Incorporation or these By-laws shall require a vote of a greater number. In
case at any meeting of the Board of Directors a quorum shall not be present,
the members of the Board of Directors present may adjourn the meeting from time
to time until a quorum shall be present.
Section 2.7. Organization. Meetings of the Board of
Directors shall be presided over by the Chairman of the Board of Directors, if
any, or in the absence of the Chairman of the Board of Directors by the
President, if a member of the Board of Directors, or if the President is not a
member of the Board of Directors or in the President's absence by a chairman
chosen at the meeting. The Secretary, or in the absence of the Secretary an
Assistant Secretary, shall act as secretary of the meeting, but in the absence
of the Secretary and any Assistant Secretary, the chairman of the meeting may
appoint any person to act as secretary of the meeting.
Section 2.8. Action by Directors Without a Meeting. Unless
otherwise restricted by the Restated Certificate of Incorporation or these
By-laws, any action required or permitted to be taken at any meeting of the
Board of Directors, or of any committee thereof, may be taken without a meeting
if all members of the Board of Directors or of such committee, as the case may
be, consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the Board of Directors or committee.
Section 2.9. Compensation of Directors. The stockholders or
the Board of Directors may from time to time by resolution fix the fees or
other compensation of the Directors for services as such to the Corporation,
including attendance at meetings of the Board of Directors or committees of the
Board.
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ARTICLE III
Committees
Section 3.1. Executive Committee. The Board of Directors
shall designate an Executive Committee to consist of three or more Directors.
The Board of Directors shall designate one of the members of the Executive
Committee as Chairman of the Executive Committee. The Executive Committee
shall have and may exercise, so far as may be permitted by law, all of the
powers and authority of the Board in the management of the business and affairs
of the Corporation during the intervals between meetings of the Board of
Directors, and may authorize the seal of the Corporation to be affixed to or
imprinted on all papers which may require it. The Board shall have the power
at any time to fill vacancies in, to change the membership of, or to dissolve,
the Executive Committee. The Executive Committee may hold meetings and make
rules for the conduct of its business and appoint such committees and
assistants as it shall from time to time deem necessary. A majority of the
members of the Executive Committee shall constitute a quorum. The Executive
Committee shall keep minutes of its meetings, in which minutes shall be
recorded all action taken, and all action of the Executive Committee shall be
reported to the Board at the meeting next succeeding such action. The
Executive Committee shall also be authorized and empowered to authorize the
issue of securities or other instruments of the Corporation including, but not
limited to, Common Stock, par value $0.01 per share, of the Corporation.
Section 3.2. Finance Committee. The Board of Directors shall
designate a Finance Committee to consist of three or more Directors. The Board
of Directors shall designate one of the members of the Finance Committee as
Chairman of the Finance Committee. The Finance Committee shall have the power
to authorize the investment from time to time of the liquid or working assets
of the Corporation in readily marketable securities not purchased as a
permanent or semi-permanent investment as a part of the Corporation's
operations, and to authorize the sale of any such investment. The Board shall
have power at any time to fill vacancies in, to change the membership of, or to
dissolve, the Finance Committee, and the Finance Committee shall not have power
to fill any vacancies in such Committee. The Finance Committee may hold
meetings and make rules for the conduct of its business and appoint such
committees as it shall from time to time deem necessary. The Finance Committee
shall elect its Secretary and may designate such other assistants as it shall
from time to time deem necessary. A majority of the members
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of the Finance Committee shall constitute a quorum. The Finance Committee
shall keep minutes of its meetings, in which minutes shall be recorded all
action taken, and all action of the Finance Committee shall be reported to the
Board at the meeting next succeeding such action.
Section 3.3. Audit Committee. The Board of Directors shall
designate an Audit Committee to consist of three or more Directors. No
Director who is also an officer shall be a member of the Audit Committee. The
Board of Directors shall designate one of the members of the Audit Committee as
Chairman of the Audit Committee. The Audit Committee shall recommend to the
Board a firm of independent public accountants, which shall conduct the annual
audit of the accounts of the Corporation, and the nature and scope of the
audit, which shall be in accordance with accepted accounting practices, and it
shall furnish the Board with a written report at least annually containing its
said recommendations and any comments it may desire to make about the financial
organization or accounting practices of the Corporation and the qualifications
or performance of its past or proposed auditing firm. The Audit Committee
shall recommend to the Board policies with regard to avoidance of employee
conflicts of interest and shall review the administration of such policies on a
regular basis. The Board shall have power at any time to fill vacancies in, to
change the membership of, or to dissolve, the Audit Committee, and the Audit
Committee shall not have power to fill any vacancies in such Committee. The
Audit Committee may hold meetings and make rules for the conduct of its
business. The Audit Committee shall elect its Secretary and may designate such
other assistants as it shall from time to time deem necessary. A majority of
the members of the Audit Committee shall constitute a quorum. The Audit
Committee shall keep minutes of its meetings, in which minutes shall be
recorded all action taken and all action of the Audit Committee shall be
reported to the Board at the meeting next succeeding such action.
Section 3.4. Nominating Committee. The Board of Directors
shall designate a Nominating Committee to consist of three or more Directors.
The Board of Directors shall designate one of the members of the Nominating
Committee who is not an officer of the Corporation as Chairman of the
Committee. The Nominating Committee shall recommend to the Board prospective
members of the Board of Directors. In fulfilling its duties, the Nominating
Committee shall consider suggestions from all sources it deems appropriate,
including stockholders. The Board shall have the power at any time to fill
vacancies in, to change the membership of, or to dissolve, the Nominating
Committee, and the Nominating Committee shall not have the power to fill any
vacancies in
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such Committee. The Nominating Committee may hold meetings and make rules for
the conduct of its business and appoint such committees as it may from time to
time deem necessary. The Nominating Committee shall elect its Secretary and
may designate such other assistants as it shall from time to time deem
necessary. A majority of the members of the Nominating Committee shall
constitute a quorum. The Nominating Committee shall keep minutes of its
meetings, in which minutes shall be recorded all action taken, and all action
of the Nominating Committee shall be reported to the Board at the meeting next
succeeding such action.
Section 3.5. Human Resources and Compensation Committee. The
Board of Directors shall designate a Human Resources and Compensation Committee
to consist of three or more Directors. No Director who is an officer of the
Corporation or its subsidiaries or who is otherwise employed by, or a
consultant to, the Corporation or its subsidiaries shall be a member of the
Human Resources and Compensation Committee. The Board of Directors shall
designate one of the members of the Human Resources and Compensation Committee
as Chairman of such Committee. The Human Resources and Compensation Committee
shall (i) establish, implement and monitor the Corporation's program for
executive development, succession planning and compensation of Executive
Officers and other senior managerial employees of the Corporation and (ii)
perform various administrative tasks with respect to certain employee benefit
matters. The Human Resources and Compensation Committee shall also be
authorized and empowered to authorize the issue of securities or other
instruments of the Corporation including, but not limited to, Common Stock, par
value $0.01 per share, of the Corporation in connection with any grant, award
or other transaction under or in connection with an employee benefit plan
maintained or sponsored by the Corporation, its subsidiaries or affiliated
companies or under any other compensatory contract, agreement or arrangement to
which the Corporation, its subsidiaries or affiliated companies is a party.
The Board shall have the power at any time to fill vacancies in, to change the
membership of, or to dissolve, the Human Resources and Compensation Committee,
and the Human Resources and Compensation Committee shall not have the power to
fill any vacancies in such Committee. The Human Resources and Compensation
Committee may hold meetings and make rules for the conduct of its business.
The Human Resources and Compensation Committee shall elect its Secretary and
may designate such other assistants as it shall from time to time deem
necessary. A majority of the members of the Human Resources and Compensation
Committee shall constitute a quorum. The Human Resources and Compensation
Committee shall keep minutes of its meetings, in which minutes shall be
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recorded all action taken, and all action of the Human Resources and
Compensation Committee shall be reported to the Board at the meeting next
succeeding such action.
Section 3.6. Other Committees. The Board of Directors may,
by resolution passed by a majority of the whole Board of Directors, designate
one or more other committees, each committee to consist of one or more of the
Directors of the Corporation, which shall and may exercise, so far as may be
permitted by law, such powers as shall be conferred or authorized by the
resolution appointing them. A majority of any such committee may determine its
action and fix the time and place of its meetings, unless the Board of
Directors shall otherwise provide. The Board shall have power at any time to
change the membership of any such committee, to fill vacancies, and to
discharge any such committee.
Section 3.7. Telephonic Participation in Meetings. Unless
otherwise restricted by the Restated Certificate of Incorporation of the
Corporation, or these By-laws, any member of any committee designated by the
Board may participate in a meeting of such committee through conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and participation in a
meeting pursuant to this By-law shall constitute presence in person at such
meeting.
Section 3.8. Action by Written Consent. Unless otherwise
restricted by the Restated Certificate of Incorporation of the Corporation, or
by these By-laws, any action required or permitted to be taken at any meeting
of any committee of the Board of Directors may be taken without a meeting if
all members of such committee consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of such committee.
ARTICLE IV
Officers
Section 4.1. Officers; Election. As soon as practicable
after the annual meeting of stockholders in each year, the Board of Directors
shall elect a President and a Secretary, and it may, if it so determines, elect
from among its members a Chairman of the Board of Directors. The Board of
Directors may also elect one or more Vice Presidents, one or more Assistant
Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more
Assistant Treasurers and such other officers as the Board of Directors may deem
desirable or appropriate and may give any of them such further
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designations or alternate titles as it considers desirable. Any number of
offices may be held by the same person unless the Restated Certificate of
Incorporation or these By-laws otherwise provide.
Section 4.2. Term of Office; Resignation; Removal; Vacancies.
Unless otherwise provided in the resolution of the Board of Directors electing
any officer, each officer shall hold office until his or her successor is
elected and qualified or until his or her earlier resignation or removal. Any
officer may resign at any time upon written notice to the Board of Directors or
to the President or the Secretary of the Corporation. Such resignation shall
take effect at the time specified therein, and unless otherwise specified
therein no acceptance of such resignation shall be necessary to make it
effective. The Board of Directors may remove any officer with or without cause
at any time. Any such removal shall be without prejudice to the contractual
rights of such officer, if any, with the Corporation, but the election of an
officer shall not of itself create contractual rights. Any vacancy occurring
in any office of the Corporation by death, resignation, removal or otherwise
may be filled by the Board of Directors at any regular or special meeting or by
unanimous written consent.
Section 4.3. Powers and Duties. The officers of the
Corporation shall have such powers and duties in the management of the
Corporation as shall be stated in these By-laws or in a resolution of the Board
of Directors which is not inconsistent with these By-laws and, to the extent
not so stated, as generally pertain to their respective offices, subject to the
control of the Board of Directors. The Secretary shall have the duty to record
the proceedings of the meetings of the stockholders, the Board of Directors and
any committees in a book to be kept for that purpose. The Board of Directors
may require any officer, agent or employee to give security for the faithful
performance of his or her duties.
Section 4.4. Voting Upon Stock in Other Corporations. Unless
otherwise ordered by the Board of Directors, the Chairman of the Board or the
President or any Executive Vice President or any Vice President or the
Secretary or the Treasurer shall have full power and authority on behalf of the
Corporation to execute and deliver a proxy or proxies for and/or to attend and
to act and to vote at any meetings of stockholders of any corporation in which
the Corporation may hold stock, and at any such meeting shall possess and may
exercise any and all rights and powers incident to the ownership of such stock
and which, as the owner thereof, the Corporation might have possessed and
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exercised if present. The Board of Directors, by resolution, from time to
time, may confer like powers upon any other person or persons.
ARTICLE V
Stock
Section 5.1. 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 of Directors, if any, or the
President or a Vice President, and by the Treasurer or an Assistant Treasurer,
or the Secretary or an Assistant Secretary, of the Corporation, representing
the number of shares of stock in the Corporation owned by such holder. If such
certificate is manually signed by one officer or manually countersigned by a
transfer agent or by a registrar, any other signature on the certificate may be
a facsimile. In case any officer, transfer agent or registrar who has signed
or whose facsimile signature has been placed upon a certificate shall have
ceased to be such officer, transfer agent or registrar before such certificate
is issued, it may be issued by the Corporation with the same effect as if such
person were such officer, transfer agent or registrar at the date of issue.
If the Corporation is authorized to issue more than one class
of stock or more than one series of any class, the powers, designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualifications 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 by
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 powers, 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.
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Section 5.2. Lost, Stolen or Destroyed Stock Certificates;
Issuance of New Certificates. The Corporation may issue a new certificate of
stock in the place of any certificate theretofore issued by it, alleged to have
been lost, stolen or destroyed, and the Corporation may require the owner of
the lost, stolen or destroyed certificate, or such owner's legal
representative, 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.
ARTICLE VI
Miscellaneous
Section 6.1. Fiscal Year. The fiscal year of the Corporation
shall be determined by the Board of Directors.
Section 6.2. Seal. The Corporation may have a corporate seal
which shall have the name of the Corporation inscribed thereon and shall be in
such form as may be approved from time to time by the Board of Directors. The
corporate seal may be used by causing it or a facsimile thereof to be impressed
or affixed or in any other manner reproduced.
Section 6.3. Waiver of Notice of Meetings of Stockholders,
Directors and Committees. Whenever notice is required to be given by law or
under any provision of the Restated Certificate of Incorporation or these
By-laws, a written waiver thereof, signed by the person entitled to notice,
whether before or after the time stated therein, shall be deemed equivalent to
notice. Attendance of a person at a meeting shall constitute a waiver of
notice of such meeting, except when the person attends a meeting 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. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the stockholders, Directors or members of a
committee of Directors need be specified in any written waiver of notice unless
so required by the Restated Certificate of Incorporation or these By-laws.
Section 6.4. Indemnification of Directors, Officers and
Employees. The Corporation shall indemnify to the full extent permitted by law
any person made or threatened to be made a party to any action, suit or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that such person or such person's testator or intestate is or was a
Director, officer or employee of the Corporation
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or serves or served at the request of the Corporation any other enterprise as a
Director, officer or employee. Expenses, including attorneys' fees, incurred
by any such person in defending any such action, suit or proceeding shall be
paid or reimbursed by the Corporation promptly upon receipt by it of an
undertaking of such person to repay such expenses if it shall ultimately be
determined that such person is not entitled to be indemnified by the
Corporation. The rights provided to any person by this By-law shall be
enforceable against the Corporation by such person who shall be presumed to
have relied upon it in serving or continuing to serve as a Director, officer or
employee as provided above. For purposes of this By-law, the term
"Corporation" shall include any predecessor of the Corporation and any
constituent corporation (including any constituent of a constituent) absorbed
by the Corporation in a consolidation or merger; the term "other enterprise"
shall include any corporation, partnership, joint venture, trust or employee
benefit plan; service "at the request of the Corporation" shall include service
as a Director, officer or employee of the Corporation which imposes duties on,
or involves services by, such Director, officer or employee with respect to an
employee benefit plan, its participants or beneficiaries; any excise taxes
assessed on a person with respect to an employee benefit plan shall be deemed
to be indemnifiable expenses; and action by a person with respect to an
employee benefit plan which such person reasonably believes to be in the
interest of the participants and beneficiaries of such plan shall be deemed to
be action not opposed to the best interests of the Corporation.
The indemnification and payment of expenses provided by, or
granted pursuant to, this Section 6.4 shall not be deemed exclusive of any
other rights to which those seeking indemnification or payment of expenses may
be entitled under any by-law, agreement, vote of stockholders or disinterested
Directors or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office.
Anything in these By-laws to the contrary notwithstanding, no
elimination of this Section 6.4, and no amendment of this Section 6.4 adversely
affecting the right of any person to indemnification hereunder, shall be
effective until the 60th day following notice to such person of such action,
and no elimination of or amendment to this Section 6.4 shall deprive any person
of his or her rights hereunder arising out of alleged or actual events or acts
occurring prior to such 60th day or actual or alleged failures to act prior to
such 60th day.
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The Corporation shall not, except by elimination or amendment
of this Section 6.4 in a manner consistent with the preceding paragraph, take
any corporate action or enter into any agreement which prohibits, or otherwise
limits the rights of any person to, indemnification in accordance with the
provisions of this Section 6.4. The indemnification of any person provided by
this Section 6.4 shall continue after such person has ceased to be a Director,
officer or employee of the Corporation and shall inure to the benefit of such
person's heirs, executors, administrators and legal representatives.
Section 6.5. Interested Directors; Quorum. No contract or
transaction between the Corporation and one or more of its Directors or
officers, or between the Corporation and any other corporation, partnership,
association or other organization in which one or more of its Directors or
officers are Directors or officers, or have a financial interest, shall be void
or voidable solely for this reason, or solely because the Director or officer
is present at or participates in the meeting of the Board of Directors or
committee thereof which authorizes the contract or transaction, or solely
because his or her or their votes are counted for such purpose, if: (1) the
material facts as to his or her relationship or interest and as to the contract
or transaction are disclosed or are known to the Board of Directors or the
committee, and the Board of Directors or committee in good faith authorizes the
contract or transaction by the affirmative votes of a majority of the
disinterested Directors, even though the disinterested Directors be less than a
quorum; or (2) the material facts as to his or her relationship or interest and
as to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stockholders; or (3) the
contract or transaction is fair as to the Corporation as of the time it is
authorized, approved or ratified, by the Board of Directors, a committee
thereof or the stockholders. Common or interested Directors may be counted in
determining the presence of a quorum at a meeting of the Board of Directors or
of a committee which authorizes the contract or transaction.
Section 6.6. Form of Records. Any records maintained by the
Corporation in the regular course of its business, including its stock ledger,
books of account and minute books, may be kept on, or be in the form of, punch
cards, magnetic tape, photographs, microphotographs or any other information
storage device, provided that the records so kept can be converted into clearly
legible form within a reasonable time. The Corporation shall so convert any
records so kept upon the request of any person entitled to inspect the same.
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Section 6.7. Amendment of By-laws. These By-laws may be
amended or repealed, and new By-laws adopted, by the Board of Directors, but
the stockholders entitled to vote may adopt additional By-laws and may amend or
repeal any By-law whether or not adopted by them.
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