1
EXHIBIT 3.2
ABM INDUSTRIES INCORPORATED
BYLAWS
As Amended March 20, 2001
ARTICLE I
OFFICES
SECTION 1.1. REGISTERED OFFICE. The registered office shall be
located in the City of Wilmington, County of New Castle, State of Delaware.
SECTION 1.2. OTHER OFFICES. The Corporation may also have offices at
such other places both within and without the State of Delaware as the Board of
Directors may from time to time determine or the business of the Corporation may
require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 2.1. PLACE OF MEETING. All meetings of stock-holders shall be
held at the principal executive office of the Corporation or at any other place,
either within or without the State of Delaware, as may be designated by the
Board of Directors.
SECTION 2.2. ANNUAL MEETING. The annual meeting of stockholders shall
be held on such date and at such time as the Board of Directors may designate.
At each annual meeting the stockholders shall elect directors to
succeed those whose terms expire in that year and to
1
2
EXHIBIT 3.2
serve until their successors are elected, and shall transact such other business
as may properly be brought before the meeting.
SECTION 2.3. NOTICE OF ANNUAL MEETING. Written notice of the annual
meeting stating the place, date and hour of the meeting shall be given to each
stockholder entitled to vote at such meeting not less than ten nor more than
sixty days before the date of the meeting. Such notice shall be given either
personally or by mail or other means of written communication, addressed or
delivered to each stockholder entitled to vote at such meeting at the address of
such stockholder appearing on the books of the Corporation or given by him to
the Corporation for the purpose of such notice. If no such address appears or is
given, notice shall be given either personally or by mail or other means of
written communication addressed to the stockholder at the place where the
principal executive office of the Corporation is located. The notice shall be
deemed to have been given at the time when delivered personally or deposited in
the mail or sent by other means of written communication.
SECTION 2.4. BUSINESS AT ANNUAL MEETINGS. At an annual meeting of
stockholders, only such business shall be conducted as shall have been brought
before the meeting (i) pursuant to the Corporation's notice of the meeting, (ii)
by or at the direction of the Board of Directors or (iii) by any stockholder of
the Corporation who is a stockholder of record at the time of giving of the
notice provided for in this Bylaw, who shall be entitled to vote at such meeting
and who shall have complied with the notice procedures set forth in this Bylaw.
2
3
EXHIBIT 3.2
For business to be properly brought before an annual meeting by a stockholder
pursuant to Section 2.4(a) of this Bylaw, notice in writing must be delivered or
mailed, postage prepaid, to the Secretary of the Corporation and received at the
principal executive offices of the Corporation not less than 60 days prior to
the first anniversary of the date on which the Cor-poration first mailed its
proxy materials for the preceding year's annual meeting of stockholders;
provided, however, that in the event that the date of the meeting is advanced by
more than 30 days or delayed by more than 60 days from such meeting's
anniversary date, notice by the stockholder must be received not later than the
close of business on the later of the 60th day prior to such date of mailing of
proxy materials or the 10th day following the day on which public announcement
of the date of the annual meeting is first made. Such stockholder's notice shall
set forth as to each matter the stockholder proposes to bring before the annual
meeting (i) a brief description of the business to be brought before the annual
meeting and the reasons for conducting such business at such meeting; (ii) the
name and address, as they appear on the Corporation's books, of the stockholder
proposing such business, and the name and address of the beneficial owner, if
any, on whose behalf the proposal is made; (iii) the class and number of shares
of the Corporation's stock which are beneficially owned by the stockholder, and
by the beneficial owner, if any, on whose behalf the proposal is made; and (iv)
any material interest of the stockholder, and of the beneficial owner, if any,
on whose behalf the proposal is made, in such business.
3
4
EXHIBIT 3.2
For purposes of these Bylaws, "public announcement" shall mean disclosure in a
press release reported by the Dow Jones News Service, Associated Press or
comparable news service or in a document publicly filed by the Corporation with
the Securities and Exchange Commission pursuant to Section 13, 14 or 15(b) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act").
Notwithstanding anything in these Bylaws to the contrary, no business
shall be conducted at an annual meeting except in accordance with the procedures
set forth in this Bylaw. The chairman of the meeting may, if the facts warrant,
determine that the business was not properly brought before the meeting in
accordance with the provisions of this Bylaw; and if the chairman should so
determine, the chairman shall so declare to the meeting, and any such business
not properly brought before the meeting shall not be transacted. Notwithstanding
the foregoing provisions of this Bylaw, a stockholder shall also comply with all
applicable requirements of the Exchange Act and the rules and regulations
thereunder with respect to the matters set forth in this Bylaw. Nothing in this
Bylaw shall be deemed to affect any rights of stockholders to request inclusion
of proposals in the Corporation's proxy statement pursuant to Rule 14a-8 under
the Exchange Act.
SECTION 2.5. LIST OF STOCKHOLDERS. The officer who has charge of the
stock ledger of the Corporation shall prepare and make, at least ten days before
every meeting of stockholders, a complete list of stockholders entitled to vote
at the meeting,
4
5
EXHIBIT 3.2
arranged in alphabetical order, and showing the address of the 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, 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.
SECTION 2.6. SPECIAL MEETINGS. Special meetings of the stockholders,
for any purpose or purposes, may be called at any time by the Board of
Directors, or by a committee of the Board of Directors which has been duly
designated by the Board of Directors and whose power and authority, as provided
in a resolution of the Board of Directors, include the power to call such
meetings, but such special meetings may not be called by any other person or
persons.
SECTION 2.7. NOTICE OF SPECIAL MEETINGS. Written notice of a special
meeting of stockholders stating the place, date and hour of the meeting and the
purpose or purposes for which the meeting is called shall be given not less than
ten nor more than sixty days before the date of the meeting to each stockholder
entitled to vote at such meeting.
SECTION 2.8. BUSINESS AT SPECIAL MEETINGS. The business transacted at
any special meeting of stockholders shall be limited to the purposes stated in
the notice.
5
6
EXHIBIT 3.2
SECTION 2.9. ADJOURNED MEETINGS AND NOTICE THEREOF. Any stockholders'
meeting, annual or special, whether or not a quorum is present, may be adjourned
from time to time by the vote of a majority of the shares represented either in
person or by proxy, but in the absence of a quorum, no other business may be
transacted at such meeting, except as provided in Section 2.10 of these bylaws.
When a stockholders' meeting is adjourned to another time or place, notice of
the adjourned meeting need not be given if the time and place thereof are
announced at the meeting at which the adjournment is taken; except that if the
adjournment is for more than thirty days or if after the adjournment a new
record date is fixed for the adjourned meeting, notice of the adjourned meeting
shall be given to each stockholder of record entitled to vote thereat. At the
adjourned meeting, the Corporation may transact any business which might have
been transacted at the original meeting.
SECTION 2.10. QUORUM. The holders of a majority of the shares issued
and outstanding and entitled to vote thereat, present in person or represented
by proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation.
SECTION 2.11. MAJORITY VOTE. If a quorum is present at any meeting,
the vote of the holders of a majority of the shares having voting power, present
in person or represented by
6
7
EXHIBIT 3.2
proxy, ssrhall decide any question brought before such meeting, unless a
different vote is required on that question by express provision of statute or
of the certificate of incorporation, in which case such express provision shall
govern and control.
The stockholders present at a duly called or held meeting at which a
quorum is present may continue to do business until adjournment, notwithstanding
the withdrawal of enough stockholders to leave less than a quorum, in any action
taken (other than adjournment) is approved by at least a majority of the shares
required to constitute a quorum, unless a different vote is required as set
forth above.
SECTION 2.12. VOTING. Except as otherwise provided in the certificate
of incorporation and subject to Section 8.4 of these bylaws, each stockholder
shall be entitled to one vote, in person or by proxy, for each share of capital
stock having voting power held by such stockholder, but no proxy shall be voted
or acted upon after three years from its date, unless the proxy provides for a
longer period. Vote may be viva voce or by ballot; provided, however, that
elections for directors must be by ballot.
Any holder of shares entitled to vote on any matter may vote part of
the shares in favor of the proposal and refrain from voting the remaining shares
or vote them against the proposal, other than elections to office but, if the
stockholder fails to specify the number of shares such stockholder is voting
affirmatively, it shall be conclusively presumed that the stockholder's
7
8
EXHIBIT 3.2
approving vote is with respect to all shares said stockholder is entitled to
vote.
SECTION 2.13. STOCKHOLDER ACTION. Any action required or permitted to
be taken by the stockholders must be effected at a duly called annual or special
meeting of such holders and may not be effected by any consent in writing by
such holders. Attendance of a person at a meeting shall constitute a waiver of
notice of such meeting, except when a person objects, at the beginning of the
meeting, to the transaction of any business because the meeting is not lawfully
called or convened; provided, that attendance at a meeting is not a waiver of
any right to object to the consideration of matters required by law or these
bylaws to be included in the notice but not so included if such objection is
expressly made at the meeting.
SECTION 2.14. PRESIDING OFFICER. The chairman of the Board of
Directors, if there be such officer, shall, if present, call the meetings of the
stockholders to order and shall act as the presiding officer thereof.
SECTION 2.15. SECRETARY. The secretary of the Corporation, if
present, shall act as secretary of all meetings of the stockholders. In the
absence of the secretary, an assistant secretary if present shall act as
secretary of the meetings of the stockholders. In the absence of the secretary
or any assistant secretary, the presiding officer may appoint a person to act
as secretary of such meeting.
8
9
EXHIBIT 3.2
ARTICLE III
DIRECTORS
SECTION 3.1. NUMBER OF DIRECTORS, ELECTION AND TERM OF OFFICE. The
number of directors which shall constitute the whole board shall be ten. The
Board of Directors shall be classified, with respect to the time for which they
severally hold office, into three classes, as nearly equal in number as
possible, as determined by the Board of Directors, one class to hold office
initially for a term expiring at the annual meeting of stockholders to be held
in 1986, another class to hold office initially for a term expiring at the
annual meeting of stockholders to be held in 1987, and another class to hold
office initially for a term expiring at the annual meeting of stockholders to be
held in 1988, with the members of each class to hold office until their
successors are elected and qualified. At each annual meeting of stockholders,
the successors of the class of directors whose term expires at that meeting
shall be elected to hold office for a term expiring at the annual meeting of
stockholders held in the third year following the year of their election.
The term "entire board" as used in these bylaws means the total number
of directors which the Corporation would have if there were no vacancies.
SECTION 3.2. VACANCIES. A vacancy in the Board of Directors shall be
deemed to exist in case of the death, resignation, or removal of any director,
or if the authorized number of directors be increased, or if the stockholders
fail at any annual
9
10
EXHIBIT 3.2
or special meeting of stockholders to elect the full authorized number of
directors to be voted for at that meeting.
Unless otherwise provided in the certificate of incorporation,
vacancies and newly created directorships resulting from any increase in the
authorized number of directors may be filled by a majority of the directors then
in office, although less than a quorum, or by a sole remaining director, and any
director so chosen shall hold office until the next election of the class for
which he was chosen and until his successor is fully elected and qualified,
unless sooner displaced. If at any time the Corporation should have no directors
in office, then an election of directors may be held in the manner provided by
statute. If, at the time of filling any vacancy or any newly created
directorship, the directors then in office constitute less than a majority of
the entire board (as constituted immediately prior to any such increase), the
Court of the Chancery may upon application of any stockholder or stockholders
holding at least ten percent (10%) of the total number of the shares at the time
outstanding having the right to vote for such directors, summarily order an
election to be held to fill any such vacancies or newly created directorships or
to replace the directors chosen by the directors then in office.
SECTION 3.3. POWERS. The business and affairs of the Corporation
shall be managed by its Board of Directors which may exercise all such powers of
the Corporation and do all such lawful acts and things as are not by statute or
by the certificate
10
11
EXHIBIT 3.2
of incorporation or by these bylaws directed or required to be exercised or done
by the stockholders.
SECTION 3.4. COMPENSATION OF DIRECTORS. The Board of Directors shall
have the authority to fix the compensation of directors. No such compensation
shall preclude any director from serving the Corporation in any other capacity
and receiving compensation therefor.
SECTION 3.5. RESIGNATION. Any director may resign effective upon
giving written notice to the chief executive officer, the secretary, or the
Board of Directors of the Corporation, unless the notice specifies a later time
for the effectiveness of such resignation. If the resignation is effective at a
future time, a successor may be elected to take office when the resignation
becomes effective.
SECTION 3.6. NOMINATIONS OF DIRECTORS. Only persons who are nominated
in accordance with the procedures set forth in these Bylaws shall be eligible
for election as directors. Nominations of persons for election to the Board of
Directors may be made at a meeting of stockholders (i) by the Board of Directors
or a committee appointed by the Board of Directors authorized to make such
nominations or (ii) by any stockholder of the Corporation who is a stockholder
of record at the time of giving of the notice provided for in this Bylaw, who
shall be entitled to vote for the election of directors at the meeting and who
complies with the notice procedures set forth in this Bylaw. Nominations by
stockholders shall be made pursuant to notice in writing,
11
12
EXHIBIT 3.2
delivered or mailed, postage prepaid, to the Secretary of the Corporation and
received at the principal executive offices of the Corporation (i) in the case
of an annual meeting, not less than 60 days prior to the first anniversary of
the date on which the Corporation first mailed its proxy materials for the
preceding year's annual meeting of stockholders, provided, however, that in the
event that the date of the meeting is advanced by more than 30 days or delayed
by more than 60 days from such anniversary date, notice by the stockholder must
be received not later than the close of business on the later of the 60th day
prior to such date of mailing of proxy materials or the 10th day following the
day on which public announcement of the date of the meeting is first made; or
(ii) in the case of a special meeting at which directors are to be elected, not
later than the close of business on the later of the 60th day prior to such
special meeting or the 10th day following the day on which public announcement
of the date of the meeting and of the nominees proposed by the Board of
Directors to be elected at such meeting is first made. Such stockholder's notice
shall set forth (i) the name and address of the stockholder who intends to make
the nomination and of the person or persons to be nominated; (ii) 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
12
13
EXHIBIT 3.2
notice; (iii) a description of all arrangements or under-standings 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; (iv) 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, had the
nominee been nominated, or intended to be nominated by the Board of Directors;
and (v) the written consent of such nominee to serve as a director of the
Corporation if elected. At the request of the Board of Directors, or any
committee appointed by the Board of Directors authorized to make such
nominations, any person nominated by the Board of Directors, or such committee,
for election as a director shall furnish to the Secretary of the Corporation
that information required to be set forth in a stockholder's notice of
nomination that pertains to the nominee. Notwithstanding anything in this Bylaw
to the contrary, in the event that the number of directors to be elected to the
Board of Directors of the Corporation is increased and there is no public
statement naming all the nominees for Director or specifying the size of the
increased Board of Directors made by the Corporation at least 70 days prior to
the first anniversary of the preceding year's annual meeting, a stockholder's
notice required by this Bylaw shall also be considered timely, but
13
14
EXHIBIT 3.2
only with respect to nominees for any new positions created by such increase, if
it shall be delivered to the Secretary at the principal executive offices of the
Corporation not later than the close of business on the 10th day following the
day on which such public announcement is first made by the Corporation. No
person shall be eligible for election as a director of the Corporation unless
nominated in accordance with the procedures set forth in these Bylaws. The
chairman of the meeting may, if the facts warrant, determine that a nomination
was not made in accordance with the procedures prescribed in this Bylaw; and if
the chairman should so determine, the chairman shall so declare to the meeting,
and the defective nomination shall be disregarded. Notwithstanding the foregoing
provisions of this Bylaw, a stockholder shall also comply with all applicable
requirements of the Exchange Act, and the rules and regulations thereunder with
respect to the matters set forth in this Bylaw.
ARTICLE IV
MEETINGS OF THE BOARD OF DIRECTORS
SECTION 4.1. PLACE OF MEETING. The Board of Directors of the
Corporation may hold meetings, both regular and special, either within or
without the State of Delaware.
SECTION 4.2. ORGANIZATION MEETING. Immediately after each annual
meeting of stockholders, the Board of Directors
14
15
EXHIBIT 3.2
shall hold a regular meeting for the purpose of organization, electing officers
and transacting other business. No notice of such meeting need be given. In the
event such meeting is not so held, the meeting may be held at such time and
place as shall be specified in a notice given as hereafter provided for special
meetings of the Board of Directors, or as shall be specified in a written waiver
signed by all of the directors.
SECTION 4.3. REGULAR MEETINGS. Regular meetings of the Board of
Directors may be held at such time and at such place as shall from time to time
be determined by the Board of Directors; provided, however, that if the date so
designated falls upon a legal holiday, then the meeting shall be held at the
same time and place on the next succeeding day which is not a legal holiday.
Such regular meetings may be held without notice.
SECTION 4.4. SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called by the chairman of the board of directors, chairman of
the executive committee of the Board of Directors, the chief executive officer
or the president or on the written request of the directors constituting a
majority of the entire board.
SECTION 4.5. NOTICE OF SPECIAL MEETINGS. Notice of the time and place
of special meetings of the Board of Director shall be delivered personally to
each director, or sent to each director by mail, telephone, or telegraph. In
case such notice is sent by mail or telegraphed it shall be deposited in the
United States mail or delivered to the telegraph company in the place in which
the principal office of the Corporation is located at least 48 hours prior to
the time of the holding of the meeting. In case such notice is delivered
personally or by telephone, it shall be so delivered at least 24 hours prior to
the time of the holding of the meeting. Such notice shall not be necessary if
appropriate waivers, consents and/or approvals are filed in accordance with
Section 4.6 of these bylaws.
15
16
EXHIBIT 3.2
SECTION 4.6. WAIVER OF NOTICE. Notice of a meeting need not be given
to any director who signs a waiver of notice, whether before or after the
meeting, or who attends the meeting without protesting, prior thereto or at its
commencement, the lack of notice to such director. The transactions of any
meeting of the Board of Directors, however called and noticed or wherever held,
shall be as valid as though had at a meeting duly held after regular call and
notice if a quorum is present and if, either before or after the meeting, each
of the directors not present signs a written waiver of notice, a consent to
holding the meeting or an approval of the minutes thereof. All such waivers,
consents and approvals shall be filed with the corporate records or made a part
of the minutes of the meeting.
SECTION 4.7. QUORUM. At all meetings of the board, the presence of
one-third of the entire board shall constitute a quorum for the transaction of
business, and the
17
EXHIBIT 3.2
act of a majority of the directors present at any meetings at which there is a
quorum shall be the act of the Board of Directors, except as may be otherwise
specifically provided by statute or by the certificate of incorporation. If a
quorum shall not be present at any meeting of the Board of Directors, the
directors present thereat may adjourn the meeting without notice other than
announcement at the meeting, until a quorum shall be present. A meeting at which
a quorum is initially present may continue to transact business, notwithstanding
the withdrawal of directors, if any action taken is approved by at least a
majority of the required quorum for such meeting.
SECTION 4.8. ADJOURNMENT. Any meeting of the Board of Directors,
whether or not a quorum is present, may be adjourned to another time and place
by the vote of a majority of the directors present. Notice of the time and place
of the adjourned meeting need not be given to absent directors if said time and
place are fixed at the meeting adjourned.
SECTION 4.9. ACTION WITHOUT MEETING. Unless otherwise restricted by
the certificate of incorporation or these bylaws, 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 or
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 or committee.
17
18
EXHIBIT 3.2
SECTION 4.10. CONFERENCE COMMUNICATION. Unless otherwise restricted
by the certificate of incorporation or these bylaws, members of the Board of
Directors or any committee designated by the board may participate in a meeting
of the Board of Directors or committee by means of a conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear one another. Participation in a meeting pursuant to this
action shall constitute presence in person at such meeting.
ARTICLE V
COMMITTEES OF DIRECTORS
SECTION 5.1. COMMITTEES OF DIRECTORS. The Board of Directors may, by
resolution passed by a majority of the entire board, designate one or more
committees, 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 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 such member or members 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
18
19
EXHIBIT 3.2
disqualified member. Any such committee, to the extent provided in the
resolutions of the Board of Directors, shall have and may exercise all the power
and authority of the Board of Directors in the management of the business and
affairs of the Corporation, and may authorize the seal of the Corporation to be
affixed to all papers which may require it; but no such committee shall have the
power or authority in reference to amending the certificate of incorporation,
adopting an agreement of merger or consolidation, recommending to the
stockholders the sale, lease or exchange of substantially all of the
Corporation's property and assets, recommending to the stockholders a
dissolution of the Corporation or a revocation of a dissolution, or amending the
bylaws of the Corporation and, unless the resolution or the certificate of
incorporation expressly so provide, no such committee shall have the power or
authority to declare a dividend or to authorize the issuance of stock. Such
committee or committees shall have such name or names as may be determined from
time to time by resolution adopted by the Board of Directors.
SECTION 5.2. COMMITTEE MINUTES. Each committee shall keep regular
minutes of its meetings and report the same to the Board of Directors when
required.
SECTION 5.3. AUDIT COMMITTEE. There shall be an Audit Committee
comprised of at least three members of the Board. The members will be appointed
by and serve at the pleasure of the board. Each member of the Audit committee
will be
19
20
EXHIBIT 3.2
"independent" as defined by and to the extent required by the rules of the New
York Stock Exchange. Each member of the Audit Committee will be "financially
literate" as interpreted by the board, in its business judgement, or must become
"financially literate" within a reasonable period of time after his or her
appointment to the Audit Committee. At least one member of the Audit Committee
must have "accounting or related financial management expertise", as interpreted
by the board in its business judgement.
The Audit Committee as a group will meet individually with the
Company's outside auditors, Chief Executive Officer and Chief Financial Officer
upon completion of the annual audit, and at such other times as it deems
appropriate, to review the outside auditors' examination and management report.
The Audit Committee shall oversee the corporate financial reporting
process and the internal and external audits of the Corporation. The Audit
Committee will undertake those specific duties, responsibilities and processes
listed below and such other duties as the Board of Directors from time to time
prescribe. The Audit Committee will ensure that there is effective communication
among the Board, management and outside auditors.
The responsibilities of the Audit Committee include:
20
21
EXHIBIT 3.2
1. Recommending outside auditors for approval by the Board and, if
necessary, the termination of the outside auditors presently engaged;
2. Approving the fees for the audit and related services at least
annually;
3. Reviewing the quarterly and annual financial statements, and discussing
the audited annual financial statements with both the Company's outside
auditors and the Company's management, prior to any public filing of
those reports;
4. Discussing with the Company's outside auditors the quality of
accounting principles applied in the Company's financial statements and
the other matters required by SAS 61 and amendments or supplements
thereto, such as management judgments and accounting estimates that
affect financial statements, significant new accounting policies and
disagreements with management;
5. Ensuring the receipt of, and reviewing, a formal written statement from
the Company's outside auditors delineating all relationships between
the outside auditor and the Company, consistent with Independence
Standards Board Standard 1;
21
22
EXHIBIT 3.2
6. Reviewing and actively discussing with the Company's outside auditors
the auditor's independence, including any disclosed relationship or
service that may impact the objectivity and independence of the outside
auditor;
7. Recommending that the Board take appropriate action to ensure the
independence of the outside auditor;
8. Overseeing the Company's compliance with SEC requirements for
disclosure of auditor's services and Audit Committee members and
activities;
9. Reviewing the Company's system of internal accounting controls;
10. Making inquiries into matters within the scope of its functions and
retaining outside counsel if it deems appropriate in connection with
such inquiries; and
11. Ensuring that the Company provides annual written affirmation to the
NYSE regarding: (i) any Board determination regarding the independence
of the Audit Committee members, (ii) the financial literacy of the
Audit Committee members, (iii) the determination that at least one
member has the requisite accounting or
22
23
EXHIBIT 3.2
financial expertise; and (iv) the annual review of this Charter.
12. Ensure that the outside auditors understand both:
(i) their ultimate accountability to the Board and to the Audit
Committee, as representatives of the Company's stockholders, and (ii)
the Board's and the Audit Committee's ultimate authority and
responsibility to select, evaluate and, where appropriate in the
exercise of their business judgment, replace the Company's outside
auditors, or nominate the outside auditor to be proposed for
stockholder approval in any proxy statement.
13. review and reassess the adequacy of its committee charter at least once
a year.
SECTION 5.4 EXECUTIVE COMMITTEE. There shall be an Executive
Committee of the Board of Directors that shall include a minimum of any three
directors appointed from time to time by the Board. The functions of the
Executive Committee shall be to exercise all power and authority of the Board in
the management of the business and affairs of the Corporation, except for: (a)
any functions delegated to other committees of the Board. (b) amending the
Articles or Certificate of Incorporation, (c) adopting an agreement of merger or
consolidation, (d) recommending to the stockholders the sale, lease or exchange
of substantially
23
24
EXHIBIT 3.2
all of the Corporation's property and assets, (e) recommending to the
stockholders a dissolution of the Corporation or a revocation of a dissolution,
(f) amending the Bylaws of the Corporation, (g) declaring a
dividend, or (h) authorizing the issuance of stock in the Corporation.
SECTION 5.5. EXECUTIVE OFFICER COMPENSATION & STOCK OPTION COMMITTEE.
There shall be an Executive Officer Compensation & Stock Option Committee of the
Board of Directors that shall include a minimum of any three independent
directors appointed from time to time by the Board. The functions of the
Executive Officer Compensation & Stock Option Committee shall be to: (a) review
and recommend to the Board the compensation and other contractual terms and
conditions for employment of the Corporation's executive officers, (b) review
and recommend to the Board the compensation and other contractual terms and
conditions for employment of any and all former executive officers of the
company who resume service to the Company as independent contractors or
non-officer employees, (c) review the compensation and other contractual terms
and conditions for employment of other corporate or subsidiary officers whose
annual cash compensation exceeds $250,000, (d)to administer the Corporation's
stock option plans and authorize grants thereunder, and (e) to administer the
Corporation's employee stock purchase plan.
SECTION 5.6 NOMINATING, GOVERNANCE & SUCCESSION COMMITTEE. There
shall be a Nominating, Governance &
24
25
EXHIBIT 3.2
Succession Committee of the Board of Directors that shall include a minimum of
any three independent directors appointed from time to time by the board. The
functions of the Nominating, Governance & Succession Committee shall be to: (a)
make recommendations to the board as to the optimal number of directors on the
Board, (b) review and recommend criteria for the reelection of incumbent
directors, (c) have jurisdiction over the compensation of directors, (d)review
and recommend executive officer succession, and (e) be responsible for all
matters of corporate governance.
ARTICLE VI
OFFICERS
SECTION 6.1 OFFICERS. The officers of the Corporation shall be a
chief executive officer, a chief administrative officer, a president, a chairman
of the Board, one or more executive vice presidents, one or more senior vice
presidents, one or more vice presidents, a secretary, a controller, and a
treasurer, each of whom shall be an executive officer of the Corporation
appointed by the Board of Directors. The Corporation may also have one or more
assistant vice presidents, one or more assistant secretaries, one or more
assistant controllers, and one or more assistant treasurers, each of whom shall
be an assistant officer of the Corporation appointed by the Executive Committee
of the Board of Directors. Any number of offices may be held by the
25
26
EXHIBIT 3.2
same person, unless the certificate of incorporation or these bylaws otherwise
provide.
SECTION 6.2 ELECTION. The Board of Directors at its first meeting
after each annual meeting of stockholders shall elect all principal officers for
the ensuing year and shall designate a chief executive officer and a chief
financial officer. At its first meeting after each annual meeting of
stockholders, the Executive Committee shall elect all assistant officers.
SECTION 6.3 OTHER OFFICERS. The Board of Directors may appoint such
other officers and agents as it shall deem necessary and they 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 of Directors.
SECTION 6.4 TERM. Subject to an applicable written employment
agreement, if any, between the Corporation and any principal officer elected or
appointed by the Board of Directors or any assistant officer appointed by the
Executive Committee of the Board of Directors, said officer may be removed at
any time, either with or without cause, by the affirmative vote of a majority of
the Board of Directors or of the Executive Committee of the Board of Directors,
respectively. Any vacancy occurring in any office of the Corporation shall be
filled by the Board of Directors or by
26
27
EXHIBIT 3.2
the Executive Committee of the Board of Directors pursuant to the requirements
of Section 6.1 of this Article VI. Compensation and other terms and conditions
of employment of any principal officer shall be subject to approval of the
Officer Compensation and Stock Option Committee and the Board of Directors.
Compensation and other terms and conditions of employment of assistant officers
shall be subject to approval of the Executive Committee of the Board of
Directors.
SECTION 6.5 THE CHAIRMAN OF THE BOARD OF DIRECTORS. The chairman of
the Board of Directors shall be responsible to the Board of Directors, shall
prepare communications to the Board, and with input from the Executive
Committee, shall prepare agenda for meetings of the Board of Directors. The
Chairman of the Board of Directors shall be a member of the Executive Committee
and shall preside over all meetings of the Board of Directors and of the
stockholders. At the request of the President and Chief Executive Officer, the
Chairman shall assist him in communications with stockholders, the press and the
investment community. The chairman shall exercise and perform such other powers
and duties as may, from time to time, be assigned to him by the Board of
Directors or prescribed by these bylaws.
SECTION 6.6 THE PRESIDENT. The president shall have general and active
management over the business and affairs of the corporation, subject, however,
to the powers and authority of the chief executive officer and to the control
27
28
EXHIBIT 3.2
of the Board of Directors. In the absence or disability of the chief executive
officer, the president shall perform the duties of the chief executive officer,
and when so acting, shall have all the powers of, and be subject to all the
restrictions upon, the chief executive officer.
SECTION 6.7 THE CHIEF ADMINISTRATIVE OFFICER. In the absence or
disability of the chief executive officer and the president, the chief
administrative officer or any other officer of the corporation designated by the
Board of Directors, shall perform the duties of the chief executive officer, and
when so acting shall have all the powers of, and be subject to all the
restrictions upon, the chief executive officer. The chief administrative officer
shall have such powers and perform such other duties as from time to time may be
prescribed by the chief executive officer.
SECTION 6.8 THE SENIOR VICE PRESIDENTS. In the absence of the
chairman of the board or any executive vice presidents, the senior vice
presidents, in order of their rank as fixed by the board of directors, or, if
not ranked, the senior vice president designated by the Board of Directors shall
perform the duties of the president, and when so acting shall have all the
powers of, and be subject to all the restrictions upon the president. The senior
vice presidents shall have such other powers and perform such other duties as
from time to time may be prescribed for them respectively by the Executive
Committee of the Board of Directors.
28
29
EXHIBIT 3.2
SECTION 6.9 THE VICE PRESIDENTS. The vice presidents shall have such
powers and perform such duties as may from time to time be prescribed by the
Executive Committee of the Board of Directors.
SECTION 6.10 THE SECRETARY. The secretary shall keep, or cause to be
kept, a book of minutes in written form of the proceedings of the Board of
Directors, committees of the board, and stockholders. Such minutes shall include
all waivers of notice, consents to the holding of meeting, or approvals of the
minutes of meetings executed pursuant to these bylaws or statute. The secretary
shall keep, or cause to be kept, at the principal executive office or at the
office of the Corporation's transfer agent or registrar, a record of its
stockholders, giving the names and addresses of all stockholders, and the number
and class of shares held by each.
The secretary shall give, or cause to be given, notice of all meetings
of the stockholders and of the Board of Directors required by these bylaws or by
law to be given, and shall keep the seal of the Corporation in safe custody, and
shall have such other powers and perform such other duties as may be prescribed
by the Board of Directors or these bylaws.
SECTION 6.11 THE ASSISTANT SECRETARY. The assistant secretary shall
have all the powers and perform all the duties of the secretary in the absence
or inability of the secretary to act.
29
30
EXHIBIT 3.2
SECTION 6.12 THE CONTROLLER. The Controller of the Corporation shall
be the general manager of the accounting, tax and internal audit functions of
the Corporation and its subsidiaries, subject to the control of the chief
financial officer. The controller shall have such other powers and perform such
other duties as from time to time may be prescribed by the chief financial
officer.
SECTION 6.13 THE TREASURER. The treasurer shall have the custody of
the corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Company and shall deposit
all monies and other valuables in the name and to the credit of the Company. The
treasurer shall also have such other powers and perform such other duties as may
be prescribed by the Executive Committee of the Board of Directors.
ARTICLE VII
INDEMNIFICATION OF DIRECTORS,
OFFICERS, EMPLOYEES AND AGENTS
SECTION 7.1. ACTIONS, SUITS OR PROCEEDINGS OTHER THAN BY OR IN THE
RIGHT OF THE CORPORATION. The Corporation shall indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by
reason of
30
31
EXHIBIT 3.2
the fact that he is or was or has agreed to become a director, officer, employee
or agent of the Corporation, or is or was serving or has agreed to serve at the
request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, or by reason
of any action alleged to have been taken or omitted in such capacity, against
costs, charges, expenses (including attorneys' fees) judgments, fines and
amounts paid in settlement actually and reasonably incurred by him or on his
behalf in connection with such action, suit or proceeding and any appeal
therefrom, if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful; provided however, that the foregoing indemnity shall not
be applicable as to any person who is or was or agreed to become an employee or
agent of the Corporation (other than employees or agents who are or were also
officers or directors of the Corporation), or is or was serving or agreed to
serve at the request of the Corporation as an employee or agent of another
corporation, partnership, joint venture, trust or other enterprise (other than
employees or agents who are or were also officers or directors of any such other
corporation, partnership, joint venture, trust or enterprise), unless and until
such indemnity is specifically approved by the Board of Directors.
31
32
EXHIBIT 3.2
The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to
the best interests of the Corporation, and, with respect to any criminal action
or proceeding, had reasonable cause to believe that his conduct was unlawful.
SECTION 7.2. ACTIONS OR SUITS BY OR IN THE RIGHT OF THE CORPORATION.
The Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the Corporation to procure a judgment in its favor by
reason of the fact that he is or was or has agreed to become a director,
officer, employee or agent of the Corporation, or is or was serving or has
agreed to serve at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, or by reason of any action alleged to have been taken or
omitted in such capacity, against costs, charges and expenses (including
attorneys' fees) actually and reasonably incurred by him or on his behalf in
connection with the defense or settlement of such action or suit and any appeal
therefrom, if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Corporation except that no
indemnification shall be made in respect of
32
33
EXHIBIT 3.2
any claim, issue or matter as to which such person shall have been adjudged to
be liable to the Corporation unless and only to the extent that the Court of
Chancery of Delaware or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of such liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnify for such costs, charges and expenses which the
Court of Chancery or such other court shall deem proper; provided, however, that
the foregoing indemnity shall not be applicable as to any person who is or was
or agreed to become an employee or agent of the Corporation (other than
employees or agents who are or were also officers or directors of the
Corporation), or is or was serving or agreed to serve at the request of the
Corporation as an employee or agent of another corporation, partnership, joint
venture, trust or other enterprise other than employees or agents who are or
were also officers or directors of any such other corporation, partnership,
joint venture, trust or enterprise), unless and until such indemnity is
specifically approved by the Board of Directors.
SECTION 7.3. INDEMNIFICATION FOR COSTS, CHARGES AND EXPENSES OF
SUCCESSFUL PARTY. Notwithstanding the other provisions of this Article, to the
extent that a director, officer, employee or agent of the Corporation has been
successful on the merits or otherwise, including, without
33
34
EXHIBIT 3.2
limitation, the dismissal of an action without prejudice, in defense of any
action, suit or proceeding referred to in Sections 7.1 and 7.2 of this Article,
or in defense of any claim, issue or matter therein, he shall be indemnified
against all costs, charges and expenses (including attorneys' fees) actually and
reasonably incurred by him or on his behalf in connection therewith.
SECTION 7.4. DETERMINATION OF RIGHT TO INDEMNIFICATION. Any
indemnification under Sections 7.1 and 7.2 of this Article (unless ordered by a
court) shall be paid by the Corporation unless a determination is made (1) by
the Board of Directors by a majority vote of the quorum consisting of directors
who were not parties to such action, suit or proceeding, or (2) if such a quorum
is not obtainable, or, even if obtainable a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or (3) by the
stockholders, that indemnification of the director, officer, employee or agent
is not proper in the circumstances because he has not met the applicable
standard of conduct set forth in Sections 7.1 and 7.2 of this Article.
SECTION 7.5. ADVANCE OF COSTS, CHARGES AND EXPENSES. Costs, charges
and expenses (including attorneys' fees incurred by a person referred to in
Sections 7.1 and 7.2 of this Article in defending a civil or criminal action,
suit or proceeding shall be paid by the Corporation in advance of the final
disposition of such action, suit or proceeding;
34
35
EXHIBIT 3.2
providing, however, that the payment of such costs, charges and expenses
incurred by a director or officer in his capacity as a director or officer (and
not in any other capacity in which service was or is rendered by such person
while a director or officer) in advance of the final disposition of such action,
suit or proceeding shall be made only upon receipt of an undertaking by or on
behalf of the director or officer to repay all amounts so advanced in the event
that it shall ultimately be determined that such director or officer is not
entitled to be indemnified by the Corporation as authorized in this Article.
Such costs, charges and expenses incurred by other employees and agents may be
so paid upon such terms and conditions, if any, as the Board of Directors deems
appropriate. The Board of Directors may, in the manner set forth above, and upon
approval of such director, officer, employee or agent of the Corporation,
authorize the Corporation's counsel to represent such person, in any action,
suit or proceeding, whether or not the Corporation is a party to such action
suit or proceeding.
SECTION 7.6. PROCEDURE FOR INDEMNIFICATION. Any indemnification under
Sections 7.1., 7.2 or 7.3, or advance of costs, charges and expenses under
Section 7.5 of this Article, shall be made promptly, and in any event within 30
days, upon the written request of the director, officer, employee or agent. The
right to indemnification or advances as granted by this Article shall be
enforceable by the director,
35
36
EXHIBIT 3.2
officer, employee or agent in any court of competent jurisdiction, if the
Corporation denies such request, in whole or in part, or if no disposition
thereof is made within 30 days. Such persons; costs and expenses incurred in
connection with successfully establishing his right to indemnification, in whole
or in part, in any such action shall also be indemnified by the Corporation. It
shall be a defense to any such action (other than an action brought to enforce a
claim for the advance of costs, charges and expenses under Section 7.5 of this
Article where the required undertaking, if any, has been received by the
Corporation) that the claimant has not met the standard of conduct set forth in
Sections 7.1 or 7.2 of this Article, but the burden of proving such defense
shall be on the Corporation. Neither the failure of the Corporation (including
its Board of Directors, its independent legal counsel, and its stockholders) to
have made a determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances because he has
met the applicable standard of conduct set forth in Sections 7.1 or 7.2 of this
Article, nor the fact that there has been an actual determination by the
Corporation (including its Board of Directors, its independent legal counsel,
and its stockholders) that the claimant has not met such applicable standard of
conduct, shall be a defense to the action or create a presumption
36
37
EXHIBIT 3.2
that the claimant has not met the applicable standard of conduct.
SECTION 7.7. OTHER RIGHTS; CONTINUATION OF RIGHT TO INDEMNIFICATION.
The indemnification provided by this Article shall not be deemed exclusive of
any other rights to which a person seeking indemnification may be entitled under
any law (common or statutory), agreement, vote of stockholders or disinterested
director or otherwise, both as to action in his official capacity and as to
action in another capacity while holding office or while employed by or acting
as agent for the Corporation, and shall continue as to a person who has ceased
to be a director, officer, employee or agent, and shall inure to the benefit of
the estate, heirs, executors and administrators of such person. All rights to
indemnification under this Article shall be deemed to be a contract between the
Corporation and each director, officer, employee or agent of the Corporation who
serves or served in such capacity at any time while this Article is in effect.
Any repeal or modification of this Article or any repeal or modification of
relevant provisions of the Delaware General Corporation Law or any other
applicable laws shall not in any way diminish any rights to indemnification of
such director, officer, employee or agent or the obligations of the Corporation
arising hereunder.
SECTION 7.8. INSURANCE. The Corporation shall purchase and maintain
insurance on behalf of any person who is or was or has agreed to become a
director, officer, employee
37
38
EXHIBIT 3.2
or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any liability
asserted against him and incurred by him or on his behalf
in any such capacity, or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such liability under
the provisions of this Article, provided that such insurance is available on
acceptable terms, which determination shall be made by a vote of a majority of
the entire Board of Directors.
SECTION 7.9. SAVINGS CLAUSE. If this Article or any portion hereof
shall be invalidated on any ground by any court of competent jurisdiction, then
the Corporation shall nevertheless indemnify each director, officer, employee
and agent of the Corporation as to costs, charges and expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement with respect
to any action, suit or proceeding, whether civil, criminal, administrative or
investigative, including an action by or in the right of the Corporation, to the
full extent permitted by any applicable portion of this Article that shall not
have been invalidated and to the full extent permitted by applicable law.
38
39
EXHIBIT 3.2
ARTICLE VIII
STOCKHOLDERS
SECTION 8.1. CERTIFICATES OF STOCK. Every holder of shares in the
Corporation shall be entitled to have a certificate, signed by, or in the name
of the Corporation by, the chairman, the president or a vice president and the
secretary or an assistant secretary of the Corporation, or the treasurer or an
assistant treasurer, certifying the number of shares owned by him in the
Corporation. Any or all the signatures 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 he were such officer,
transfer agent or registrar at the date of issue.
SECTION 8.2. LOST CERTIFICATES. The Board of Directors may direct a
new certificate or certificates of stock to be issued in place of any
certificate or certificates theretofore issued by the Corporation alleged to
have been lost, stolen or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost, stolen or
destroyed. When authorizing such issue of a new certificate or certificates the
Corporation may, in its discretion, and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or
39
40
EXHIBIT 3.2
destroyed certificate or certificates, or his legal representative, to advertise
the same in such manner as it shall require and/or to give the Corporation a
bond (or other adequate security) in such sum as it may direct as indemnity
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.
SECTION 8.3. TRANSFER 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 books.
SECTION 8.4. STOCKHOLDERS OF RECORD. In order that the Corporation
may determine the stockholders entitled to notice of or to vote at any meeting
of the stockholders or any adjournment thereof, or entitled to receive payment
of any dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion, or exchange of stock
or for the purpose of any other lawful action, the Board of Directors may fix,
in advance, a record date, which shall not be more than sixty nor less than ten
days before the date of such meeting, nor more than sixty days prior to any
other action. A determination of stockholders of record entitled to notice of
40
41
EXHIBIT 3.2
or to vote at a meeting of stockholders shall apply to any adjournment of the
meeting, unless the Board of Directors fixes a new record date for the adjourned
meeting, but the board shall fix a new record date if the meeting is adjourned
for more than forty-five days from the date set for the original meeting.
SECTION 8.5. NO RECORD DATE. If no record date is fixed, 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 at the day next preceding the
day on which notice is given, or, if notice is waived, at the end of business of
the day next preceding the day on which the meeting is held. The record date for
determining stockholders for any other purpose shall be at the close of business
on the day on which the Board of Directors adopts the resolution relating
thereto.
SECTION 8.6. REGISTERED STOCKHOLDERS. The Corporation shall be
entitled to recognize the exclusive right of a person registered on its books as
the owner of shares to receive dividends, and to vote as such owner, and to hold
liable for calls and assessments a person registered on its books as the owner
of shares, and shall not be bound to recognize any equitable or other claim to
or interest in such share or shares on the part of any other person, whether or
not it shall have express or other notice thereof, except as otherwise provided
by the laws of Delaware.
41
42
EXHIBIT 3.2
ARTICLE IX
GENERAL PROVISIONS
SECTION 9.1. FISCAL YEAR. The fiscal year of the Corporation shall be
fixed by resolution of the Board of Directors.
SECTION 9.2. SEAL. The corporate seal shall have inscribed thereon
the name of the Corporation, the year of its organization, and the name of the
state of its incorporation. The seal may be used by causing it or a facsimile
thereof to be impressed or affixed or reproduced or otherwise.
ARTICLE X
AMENDMENTS
SECTION 10.1. AMENDMENTS. Subject to the provisions of the Certificate
of Incorporation, these by-laws may be altered, amended or repealed at any
regular meeting of the stockholders (or at any special meeting thereof duly
called for that purpose) by a vote of not less than 70% of the outstanding stock
entitled to vote at such meeting; provided that in the notice of such special
meeting notice of such purpose shall be given. Subject to the laws of the State
of
42
43
EXHIBIT 3.2
Delaware, the certificate of incorporation and these bylaws, the Board of
Directors may by majority vote of those present at any meeting at which a quorum
is present amend these bylaws, or enact such other bylaws as in their judgment
may be advisable for the regulation of the conduct of the affairs of the
Corporation.
43