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EXHIBIT 3.2
AMENDED AND RESTATED BY-LAWS
OF
CREDENTIALS SERVICES INTERNATIONAL, INC.
ARTICLE I
NAME, PURPOSE AND LOCATION OF CORPORATION
The name of the corporation (hereinafter called the "Corporation") is
Credentials Services International, Inc. Its duration and purpose shall be
such as are expressed in its original Certificate of Incorporation and in such
amendments thereto as may be made from time to time. Its principal office in
the State of Delaware shall be in the City of Dover, and the resident agent in
charge thereof shall be The Prentice-Hall Corporation System, Inc., at 31
Loockerman Square, Suite L-100, in the City of Dover, County of Kent, but the
Corporation may also have office(s) in other locations either within or 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
MEETING OF THE SHAREHOLDERS
SECTION 1. Place and Notice of Meetings.
All meetings of the stockholders for the election of Directors shall
be held at such place either within or without the State of Delaware as shall
be designated from time to time by the Board of Directors and stated in the
notice of the meeting. Meetings of stockholders for any other purpose may be
held at such time and place, within or without the State of Delaware, as shall
be stated in the notice of the meeting or in a duly executed waiver of notice
thereof.
SECTION 2. Time and Business of Annual Meetings.
Annual meetings of the stockholders of the Corporation for the
election of Directors and the transaction of such other business as may
properly come before the meeting shall be held, at such place, on such date and
at such time, as shall be determined by the Board of Directors. At each annual
meeting the stockholders shall elect by a plurality vote Directors to succeed
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whose terms expire at the time of the respective annual meetings pursuant to
the Certificate of Incorporation and shall transact such other business as may
properly be brought before the meeting. The annual meeting shall be held at
such date and time as shall be designated from time to time by the Board of
Directors.
SECTION 3. Notice of Annual Meetings.
Written notice of the annual meeting stating the place, date and hour
of the meeting shall be given to each stockholder entitled to vote thereat, not
less than ten (10) nor more than sixty (60) days before the date of the
meeting, unless a different period is prescribed by law. The Board of
Directors may postpone or reschedule any previously scheduled annual meeting.
SECTION 4. Calling of Special Meetings.
Special meetings of the stockholders, other than those required by
statute, may be called at any time by the Chief Executive Officer or by the
Board of Directors pursuant to a resolution unanimously approved by all of the
Directors then comprising the Board of Directors.
SECTION 5. Notice of Special Meeting.
Notice of special meetings, stating the time, place and purpose
thereof, shall be given by mailing, postage prepaid, at least 10 but not more
than 60 days before each such meeting, a copy of such notice addressed to each
stockholder of the Corporation at his post office address as recorded on the
books of the Corporation. The Board of Directors may postpone, reschedule or
cancel any previously scheduled special meeting.
Notice of any special meeting shall specify the general nature of the
business to be transacted thereat, and no other business maybe transacted at
such meeting.
SECTION 6. Business of Special Meetings.
Business conducted at special meetings shall be subject to the same
provisions and restrictions as those governing the conduct of business at
annual meetings, subject to any other provision of these By-Laws or as
otherwise prescribed by statute or by the Certificate of Incorporation.
Only such business shall be conducted at a special meeting of
stockholders as shall have been brought before the meeting pursuant to the
Corporation's notice of meeting.
SECTION 7. Quorum.
The holders of a majority of the voting power of the capital stock
issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business, except as otherwise provided
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by Delaware statute or by the Certificate of Incorporation. If, however, such
quorum shall not be present or represented at any meeting of the stockholders,
the person serving as chairman of the meeting shall have power to adjourn the
meeting, from time to time, without notice other than announcement at the
meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally
called. 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, notice of the
adjourned meeting shall be given each stockholder of record entitled to vote at
the meeting.
SECTION 8. Voting; Proxies.
Unless otherwise provided in the Certificate of Incorporation, each
stockholder on the record date shall at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of the capital stock
having voting power held by such stockholder, but no proxy shall be voted on or
after eleven (11) months from its date of execution, unless the proxy provides
for a longer period which in no case shall exceed seven (7) years from its date
of execution. The appointment of a proxy or proxies shall be made by an
instrument in writing executed by the stockholder or his duly authorized agent
and filed with the Secretary of the Corporation. When a quorum is present at
any meeting, the vote of the holders of a majority of the voting power of the
capital stock issued and outstanding and entitled to vote therein cast by those
present or represented by proxy at such meeting shall decide any question
brought before such meeting, unless the question is one upon which, by express
provision of the Delaware statutes or of the Corporation Certificate of
Incorporation or these By-Laws, a different vote is required, in which case
such express provision shall govern and control the vote required with respect
to such question.
SECTION 9. Inspectors of Election.
The Corporation shall, in advance of any meeting of stockholders,
appoint one or more inspectors to act at the meeting and render a written
report thereof. The Corporation 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 a meeting of stockholders, the chairman presiding
at the meeting shall appoint one or more inspectors to act at the meeting.
Each inspector, before entering upon the discharge of his duties, shall take
and sign an oath faithfully to execute the duties of inspector with strict
impartiality and according to the best of his ability.
The inspectors shall determine the number of shares outstanding and
the voting power of each, the shares represented at the meeting, the existence
of a quorum, the authenticity, validity and effect of proxies, shall receive
votes, ballots or consents, shall hear and determine all challenges and
questions in any way arising in connection with the right to vote, shall count
and tabulate all votes or consents and determine the results, and shall do such
acts as may be proper to conduct the election or vote with fairness to all. If
there shall be more than one inspector of election, the decision, act or
certificate of a majority shall be effective in all respects as the
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decision, act or certificate of all. Upon request of the chairman of the
meeting or of any stockholder or his proxy, the inspectors shall make a report
in writing of any challenge, question or matter determined by them and execute
a certificate of fact found by them.
SECTION 10. Stockholder Action.
Any action required or permitted to be taken by the stockholders of
the Corporation 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.
SECTION 11. List of Stockholders.
The officer who has charge of the stock ledger of the Corporation
shall prepare and make, or cause to be prepared and made, 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 (10) 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 entitled to vote at the meeting who is present
thereat.
SECTION 12. Nominations and Stockholder Business.
(a) Nominations of persons for election to the Board of Directors
of the Corporation and the conduct or transaction of any business to be
considered by the stockholders may be made at an annual meeting of stockholders
(a) pursuant to the Corporation's notice of meeting, (b) by or at the direction
of the Board of Directors, or (c) by any stockholder of the Corporation who
was a stockholder of record at the time of giving of notice provided for in
this Section, who is entitled to vote at the meeting and who has complied with
the notice procedures set forth in this Section.
(b) For nominations or other business to be properly brought
before an annual or special meeting of stockholders by a stockholder pursuant
to this Section, the stockholder must have given timely notice thereof in
writing to the Secretary of the Corporation, and such business must be a proper
subject for stockholder action under the Delaware General Corporation Law. To
be timely, a stockholder's notice shall be delivered to the Secretary at the
principal executive offices of the Corporation not less than 60 days nor more
than 90 days prior to the first anniversary of the preceding year's annual
meeting or special meeting held in lieu thereof; hereinafter referred to
collectively, solely for purposes of this paragraph (b) of this Section 12 as
the "Annual Meeting"); provided, however, that, in the event that the date of
the annual meeting is advanced by more than 30 days or delayed by more than 60
days from such
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anniversary date, notice by the stockholder to be timely must be so delivered
not earlier than the 90th day prior to the date of such annual meeting and not
later than the close of business on the later of the 60th day prior to such
annual meeting or the 10th day following the day on which public announcement
of the date of such meeting is first made. Such stockholder's notice shall set
forth (a) as to each person whom the stockholder proposes to nominate for
election or reelection as a director all information relating to such person
that is required to be disclosed in solicitations of proxies for election of
Directors, or is otherwise required, in each case pursuant to Regulation 14A
under the Securities Exchange Act of 1934, as amended (the "Exchange Act")
(including such person's written consent to being named in the proxy statement
as a nominee and consent to be named in the proxy statement as a nominee and to
serving as a director if elected); (b) as to any other business that the
stockholder proposes to bring before the meeting, a brief description of the
business desired to be brought before the meeting, the reasons for conducting
such business at the meeting and the beneficial owner, if any, on whose behalf
the proposal is made; and (c) as to the stockholder giving the notice and the
beneficial owner, if any, on whose behalf the nomination or proposal is made
(i) the name and address of such stockholder, as they appear on the
Corporation's books, and of such beneficial owner, and (ii) the class and
number of shares of the Corporation which are owned beneficially and of record
by such stockholder and such beneficial owner.
(c) Notwithstanding anything in this Section 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 announcement 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 Section shall also be considered
timely, but 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.
Only such business shall be conducted at a special meeting of
stockholders as shall have been brought before the meeting pursuant to the
Corporation's notice of meeting. Nomination of persons for election to the
Board of Directors may be made at a special meeting of stockholders at which
Directors are to be elected pursuant to the Corporation's notice of meeting (a)
by or at the discretion of the Board of Directors or (b) by any stockholder of
the Corporation who is a stockholder of record at the time of giving of notice
provided for in this Section, who shall be entitled to vote at the meeting and
who complies with the notice procedures set forth in this Section. Nominations
by stockholders of persons for election to the Board of Directors may be made
at such a special meeting of stockholders if the stockholder's notice required
by this Section shall be delivered to the Secretary at the principal executive
offices of the Corporation not earlier than the 90th day prior to the date of
such special meeting and not later than the close of business on the later of
the 60th day prior to the date of such special meeting or in the 10th day
following the day on which public announcement is first made of the date of the
special meeting and of the nominees proposed by the Board of Directors to be
elected at such meeting.
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(d) Only such persons who are nominated in accordance with the
procedures set forth in this Section shall be eligible for election as
Directors at any meeting of stockholders. Only such business shall be
conducted at a meeting of stockholders as shall have been brought before the
meeting in accordance with the procedures set forth in this Section. The
chairman of the meeting shall have the power and duty to determine whether a
nomination or any business proposed to be brought before the meeting was made
in accordance with the procedures set forth in this Section and, if any
proposed nomination or business is not incompliance with this Section, to
declare that such defective proposal shall be disregarded.
(e) For purposes of this Section, "public announcement" shall
mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service or in a document publicly
filed by the Corporation with the Securities and Exchange Commission pursuant
to Section 13, 14 or 15(d) of the Exchange Act.
(f) Notwithstanding the foregoing provisions of this Section, a
stockholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters set
forth in this Section. Nothing in this Section 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 (or any successor regulation thereto
with respect to the same or substantially the same subject matter) under the
Exchange Act.
ARTICLE III
THE BOARD OF DIRECTORS
SECTION 1. Number of Directors; Terms.
The number of Directors which shall constitute the whole Board of
Directors shall be determined from time to time by resolution of the Board of
Directors except that the authorized number of Directors shall not be less than
two (2) nor more than nine (9). The Board of Directors may increase or decrease
the number of Directors from time to time without approval of the stockholders,
beyond the minimum or maximum number set forth in the immediately preceding
sentence of this Section 1. Where the number of Directors is increased, the
Board of Directors shall elect a person to fill each vacancy thus created, to
serve until the election by the stockholders at the next annual meeting of
stockholders or special meeting of stockholders held in lieu thereof.
Directors elected by the stockholders shall hold office until their respective
successors are duly elected and qualified or until such successors sooner die,
resign, are removed or become disqualified.
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SECTION 2. Vacancies.
Subject to the provisions of the Certificate of Incorporation,
vacancies on the Board of Directors may be filled by a majority of the
Directors then in Office, though less than a quorum, or by a sole remaining
Director, and any Director so chosen shall hold office for the remainder of the
full term of the Director whose place he has been elected to fill or of the
class for which he has been designated and until his successor is duly elected
and shall qualify. If there are no Directors in office, then an election of
Directors shall be held in the manner provided by statute.
Further subject to the provisions of the Certificate of Incorporation
a vacancy or vacancies in the Board of Directors shall be deemed to exist in
case of the death, resignation or removal of any Director, or if the
stockholders fail at any annual or special meeting of stockholders at which any
Director or Directors are required to be elected to elect the full authorized
number of Directors to be voted for at that meeting, or if there are newly
created Directorships resulting from any increase in the authorized numbers of
Directors.
SECTION 3. Resignation of Directors.
Any Director may resign at any time by giving written notice to the
Board of Directors, Chairman, President or Secretary of the Corporation, to
take effect at the time specified therein. The acceptance of such resignation,
unless required by the terms thereof, shall not be necessary to make it
effective.
SECTION 4. Duties and Powers of Board.
The Board of Directors shall have all the powers of the Corporation
and all of its business, except as otherwise provided by law. It shall appoint
and remove all officers, employees, and agents of the Corporation except as
hereinafter stated, prescribe their duties, establish their compensation except
as hereinafter stated, and require, when deemed advisable, security for their
faithful service. It may make rules and regulations not inconsistent with law
and these By-Laws for the guidance of the Corporation's officers, employees and
agents. Each director shall have full access to any and all corporate records
and shall have the right to interview any corporate officer or employee with
respect to any aspect of the Corporation's business. It shall cause a report
to be made to the annual meeting of the stockholders showing the business
operations and financial position of the Corporation. It shall generally
possess all the powers and perform all the duties usually exercised by or
imposed upon boards of directors of similar corporations. The Board of
Directors shall cause the officers of the Corporation to keep appropriate
records of the proceedings of stockholders and Directors. Such records shall
be maintained by and be in the custody of the Secretary of the Corporation.
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SECTION 5. Annual Meetings.
Immediately following each annual meeting of the stockholders and at
the place thereof, or at such other time and place as shall be fixed by
resolution of the Board of Directors prior to the annual meeting of the
stockholders, the Board of Directors shall hold a meeting for the purposes of
organization, election of officers, appointment of Committees, and the
transaction of such other business as they deem necessary. Notice of such
meeting is hereby dispensed with. In the event that a meeting of the Board of
Directors is not held immediately after the annual meeting of the stockholders,
or in the event that the Board of Directors fails to fix the time and place for
such meeting, the meeting may be held at such time and place as shall be
specified in a notice given as hereinafter provided for special meetings of the
Board of Directors or as shall be specified in a duly executed waiver of notice
thereof.
SECTION 6. 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 and, if so determined by a resolution of the Board of Directors,
notices thereof need not be given.
SECTION 7. Special Meetings.
Special meetings of the Board of Directors may be called by the
Chairman of the Board, if any, or the President on two (2) days notice to each
Director; special meetings shall be called by the President or Secretary on
like notice on written request of two Directors. Notices of special meetings
shall state the place, date and hour of the meetings, but need not state the
purposes for which the meeting is called.
SECTION 8. Quorum; Action.
A majority of the number of authorized Directors shall constitute a
quorum for the transaction of business and the act of a majority of the
Directors present at any meeting at which there is a quorum shall be the act of
the Board of Directors, except as may be otherwise specifically provided by
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 from time to time, without notice other than
announcement of the adjourned meeting, until a quorum shall be present.
SECTION 9. Action of Directors Without a Meeting.
Unless otherwise restricted by the Certificate of Incorporation or
these By-Laws, any action required or permitted to be taken at any meeting of
the Board of Directors or any Committee thereof may be taken without a meeting
if all members of the Board of Directors or Committee thereof, as the case may
be, consent thereto in writing and the writing or writings are
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filled with the minutes of proceedings of the Board of Directors or Committee
thereof, as the case may be.
SECTION 10. Meetings Outside of State.
The Board of Directors of the Corporation may hold meetings, both
regular and special, either within or without the State of Delaware.
SECTION 11. Telephonic Meetings.
Unless otherwise restricted by the Certificate of Incorporation or
these By-Laws, members of the Board of Directors or any Committee thereof may
participate in a meeting of the Board of Directors or any Committee thereof by
means of telephone conference 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 section shall constitute presence
in person at such meeting.
SECTION 12. Removal of Directors.
Any or all of the Directors may be removed with or without cause if
such removal is approved by the affirmative vote of the stockholders holding a
majority of the outstanding shares of stock of the Corporation entitled to
vote.
SECTION 13. Compensation.
Unless otherwise restricted by the Certificate of Incorporation, the
Board of Directors shall have the authority to establish the compensation of
Directors. The Directors may be paid their expenses, if any, of attendance at
each meeting of the Board of Directors and may be paid a fixed sum for
attendance at each meeting of the Board of Directors or a stated salary as
Director. No such payments shall preclude any Director from serving the
Corporation in any other capacity and receiving compensation therefor. Members
of special or standing Committees may be allowed like compensation for
attending Committee meetings.
SECTION 14. Committees, Appointment and Limitation of Powers.
All Committees shall be appointed by the Board of Directors, except to
the extent otherwise authorized by any provision of these By- Laws. No
Committee, whether or not appointed by the Board, shall have authority to:
(a) declare dividends or distributions;
(b) approve or recommend to stockholders action or proposals
required by law to be approved by stockholders;
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(c) designate candidates for the office of director, for purposes
of proxy solicitation or otherwise, or fill vacancies on the
Board or any Committee thereof;
(d) amend the By-Laws;
(e) reduce earned or capital surplus;
(f) authorize or approve the reacquisition of shares unless
pursuant to a general formula or method specified by the
Board; or
(g) authorize or approve the issuance or sale of, or any contract
to issue or sell, shares or designate the terms of a series of
a class of shares, provided that the Board, having acted
regarding general authorization for the issuance or sale of
shares, or any contract therefor, and, in the case of a
series, the designation thereof, may, pursuant to a general
formula or method specified by the Board by resolution of by
adoption of a stock option or other plan, authorize a
Committee to fix the terms upon which such shares may be
issued or sold, including, without limitation, the price, the
dividend rate, provisions for redemption, sinking fund,
conversion, potential rights, and provisions for other
features of a class of shares, or a such Committee to adopt
any final resolution setting forth all the terms thereof and
to authorize the statement of the terms of a series for filing
with the Secretary of State of Delaware.
Nothing contained in this Section is intended to prohibit a Committee
from submitting recommendations to the Board of Directors regarding any matter
or transaction.
SECTION 15. Executive Committee.
(a) Members.
The Board of Directors, by resolution adopted by a majority of
the whole Board, may establish an Executive Committee, the members of which
shall consist of the Chairman of the Board of Directors, the President or, the
Chief Executive Officer (if the person occupying that office is different from
the Chairman of the Board and President) and the Executive Vice President of
the Corporation. In addition, the Board may from time to time designate one or
more other directors to serve as members of the Executive Committee.
(b) Powers.
Subject to the limitations stated in Section 14 of this
Article III and to any limitations imposed by law or imposed by the Board of
Directors, the Executive Committee may exercise all the powers of the Board in
the management of specified matters where such authority is delegated to it by
the Board, and also, subject to the same limitations, when the Board is not in
session, the Committee shall have, and may exercise, all the powers and
authority of the Board
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in the management and business of the Corporation (including the power to
authorize the seal of the Corporation to be affixed to all papers which may
require it).
(c) Meetings.
The Executive Committee shall adopt such rules and regulations
for the calling and holding of its meetings and for the transaction of business
at such meetings as to the Executive Committee shall deem appropriate and not
inconsistent with the law or these Bylaws. As provided by law, the Executive
Committee is authorized to hold meetings by conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and such participation shall constitute presence
in person at such meeting.
(d) Quorum.
Three members of the Executive Committee shall constitute a
quorum for the transaction of business, but less than a quorum may adjourn from
time to time and from place to place. The vote of the majority of the members
present at a meeting at which a quorum is present or of three members present
at such meeting, whichever is greater, shall be required to constitute action
by the Executive Committee, unless the vote of a greater number shall be
required by law.
SECTION 16. Audit Committee.
(a) Meetings.
At the first meeting of each newly elected Board of Directors,
the Board shall appoint an Audit Committee of at least two members, consisting
entirely of "independent outside Directors" of the Board (as defined in
paragraph (c) of this Section 15. of these By-Laws) and shall designate its
chairman. From time to time the Board may designate one or more independent
outside Directors as alternate members of the Committee.
(b) Powers.
The Audit Committee shall have the following powers and
duties:
(i) The Committee shall recommend annually to the Board
of Directors the independent public accountants (the
"independent accountants") to be engaged to audit the
books, records and accounts of the Corporation for
the ensuing fiscal year. Only independent
accountants recommended by the Committee and approved
by the Board shall be so engaged. In case of a
vacancy in the position of independent accountants
arising by dismissal, non-retention or resignation of
the independent accountants previously engaged by the
Company, the Committee shall recommend and
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the Board shall approve the engagement of other
independent accountants to fill such vacancy until
the next annual stockholders meeting;
(ii) The Committee shall arrange the details of the
engagement of the independent accountants, including
the remuneration to be paid to such accountants for
their services;
(iii) The Committee shall review with the Corporation's
independent accountants' as well as the Corporation's
Chief Financial Officer and/or Controller and other
appropriate personnel of the Corporation, the
following matters: (a) the Corporation's general
policies and procedures with respect to audits and
accounting and financial controls; and (b) the
general accounting and reporting principles and
practices which should be applied in preparing the
Corporation's financial statements and conducting
financial audits of its affairs;
(iv) The Committee shall meet with the independent
accountants as required, but at least twice a year,
and shall review with them the Corporation's interim
and year-end financial statements, any certification,
report, or opinion which the independent accountants
propose to render in connection with such statements,
and any other appropriate matter;
(v) The Committee shall meet with the Corporation's
internal audit staff as required, but at least twice
a year, and shall review with that staff the
Corporation's interim and year-end financial
statements, and to the extent to which the
Corporation's accounting staff has implemented any
modifications or improvements to the Corporation's
internal financial systems or controls suggested by
the independent accountants or the Committee;
(vi) The Committee shall have power to direct the
independent accountants and the Corporation's
internal audit staff to inquire into and report to it
on any corporate contract, transaction, or procedure;
the conduct of any corporate office, division, profit
center, subsidiary, or other unit; or any other
matter having to do with the Corporation's business
and affairs;
(vii) The Committee shall become and remain apprised of
those matters relating to the payment by the
Corporation of finders', promoters' or consultants'
commissions or fees, or any similar commissions or
fees, and advancement or reimbursement to any
corporate officers or employees as shall be necessary
or to permit the Committee to recommend to the Board
the policies which the Board should adopt and the
action which the Board should take to prevent any use
of Corporation funds or other assets which is
unlawful or contrary to Board policy; and
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(viii) The Committee shall make such reports and
recommendations to the Board in connection with the
foregoing functions as it shall deem appropriate or
as the Board may request, and shall take such action
thereon as the Board may direct it to take.
(c) Definitions.
(i) The term "independent accountants" shall include
individuals, companies or firms serving as the
independent outside auditors or independent outside
public accountants for the Corporation.
(ii) The term "independent outside Directors" shall mean
any person who, on the date of his election, is not
an officer or employee of the Corporation or any of
its subsidiaries.
(d) Meetings.
The Committee may adopt such rules and regulations for the
calling and holding of its meetings and for the transaction of business at such
meetings as shall be considered by the Committee to be necessary or desirable;
provided, that two members of the Committee shall constitute a quorum for the
transaction of the business and the affirmative vote of both members of the
Committee (if it shall consist of but two members) or of a majority of the
whole Committee (if it shall consist of more than two members) shall be
required to constitute action by the Committee.
(e) Staff.
The Committee may select and appoint such full-time or
part-time staff assistants, as the Committee deems necessary or desirable, who
shall perform such duties and responsibilities as the Committee shall assign.
The Compensation of its staff shall be fixed by the Committee and paid by the
Corporation in accordance with general Corporation policy, and any member of
its staff may be discharged only by the Committee.
SECTION 17. Compensation Committee.
(a) Members.
At the first meeting of each newly elected Board of Directors,
the Board shall appoint a Compensation Committee of at least two members,
consisting entirely of independent outside Directors of the Board (as defined
in Section 15(c)(ii) of this Article III of the By-Laws) and shall designate
its chairman. From time to time, the Board may designate one or more
independent outside Directors as alternate members of the Compensation
Committee.
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(b) Powers.
The Compensation Committee shall have the following powers and
duties:
(i) The Compensation Committee shall review and recommend
to the Board of Directors for its consideration and
determination the salaries of the Chairman of the
Board of Directors, the President, the Chief
Executive Officer, and to determine on its own
initiative the salaries of any Executive Officer (as
the term "Executive Officer" is defined from time to
time under Rule 3b(7) of the Securities Exchange Act
of 1934, as amended) or employee who has an annual
salary of $50,000 or more;
(ii) The Compensation Committee shall consider and make
recommendations to the Board of Directors with
respect to (a) any proposals for the application of
new benefits and incentive compensation plans or
programs, including stock bonus and stock option
plans to officers of the Company, and (ii) the
application to such officers of amendments to any
then existing such plans or programs which would
significantly increase the compensation of such
officers; and
(iii) The Compensation Committee shall perform such other
duties as may, from time to time, be delegated to the
Compensation Committee under any compensation or
benefit plans.
(c) Meetings.
The Compensation Committee shall adopt such rules and
regulations for the calling and holding of its meetings and for the transaction
of business at such meetings as shall be considered by the Compensation
Committee to be necessary or desirable; provided, that to members of the
Compensation Committee shall constitute a quorum for the transaction of
business and the affirmative vote of both members of the Committee (if it shall
consist of but two members) or of a majority of the whole Compensation
Committee (if it shall consist of more than two members) shall be required to
constitute action by the Compensation Committee.
(d) Staff.
The Compensation Committee shall be assisted by appropriate
corporate staffs, and in addition, the Compensation Committee may obtain
assistance from such other persons, who need not be employees of the
Corporation, or organizations as it may deem advisable, with the expenses
incurred thereby to be borne by the Corporation.
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SECTION 18. Auditing of Accounts.
It shall be the duty of the Board of Directors to cause the books and
accounts of the Corporation and vouchers and papers relating thereto to be
audited at least once a year.
SECTION 19. Other Interests of Directors.
No transaction between this Corporation and any director or officer of
any corporation, partnership, association, or other organization shall be
affected by any personal interest in such transaction of any Director of this
Corporation except to the extent provided by law.
SECTION 20. Submission of Acts to Stockholders.
The Board of Directors may submit any transaction for approval or
ratification at any meeting of the stockholders as the Board of Directors may,
in its discretion, determine or as required by law.
ARTICLE IV
NOTICES
SECTION 1. Notices to Directors and Stockholders.
Whenever, under the provisions of any statute or of the Certificate of
Incorporation or of the By-Laws, notice is required to be given to any Director
or the stockholders, such provisions shall not be construed to require
personal notice, but such notice shall be given in writing and may be
personally delivered or sent by mail or by electronic transmission, in any of
which cases, such notice shall be addressed to such Director or stockholder at
his address as it appears on the records of the Corporation, with postage
thereon prepaid, and such notice shall be deemed to be given at the time when
the same shall be personally delivered, deposited in the United States mail, or
by some form of electronic transmission, in any of which cases, such notice
shall be so addressed to either his address as it appears on the records of the
Corporation or at a regular place of his business. An Affidavit or
Declaration sworn to by the Secretary (or an Assistant Secretary) of the
Corporation that any such notice has been given to any of the Directors or to
the stockholders by any of the means hereinabove specified shall constitute
presumptive evidence that such notice has been so given upon the date specified
in such Affidavit or Declaration.
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SECTION 2. Waiver of Notice.
Whenever any notice is required to be given under the provisions of
any statute or of the Certificate of Incorporation or of these By-Laws, a
waiver thereof in writing, signed by the person or persons entitled to said
notice, whether before or after the time stated therein, shall be deemed
equivalent thereto. Attendance of any such person at a meeting shall
constitute waiver of notice of such meeting, except when such person attends
the 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.
ARTICLE V
OFFICERS
SECTION 1. Officers.
The officers of the Corporation shall be chosen by the Board of
Directors. The Board of Directors may elect or appoint a President or
Secretary and a Treasurer and/or such other officers (including a Chairman of
the Board, a Chief Executive Officer, a Chief Operating Officer, a Chief
Financial Officer, one or more Vice Presidents, a Controller and one or more
Assistant Vice Presidents, Assistant Secretaries, Assistant Treasurers and
Assistant Controllers) and agents as it shall deem necessary or appropriate and
who shall exercise such powers and perform such duties as shall be determined
from time to time by the Board of Directors and as are incident to their
office.
SECTION 2. Compensation.
The salaries of all officers (plus such Agents of the Corporation as
may be designated by the Board of Directors) shall be established by the Board
of Directors.
SECTION 3. Term; Vacancies.
Each officer of the Corporation shall hold office until the later of
the next annual meeting of the board of Directors or until his successor is
chosen and qualified or until his earlier resignation or removal. Any vacancy
occurring in any office of the Corporation shall be filled by the Board of
Directors at such time as the Board of Directors deems appropriate.
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SECTION 4. Removal and Resignation.
Any officer may be removed, either with or without cause, by the Board
of Directors at any regular or special meeting or, if a subordinate officer, by
an officer upon whom the power of removal of subordinate officers has been
conferred by the Board of Directors. Any officer may resign at any time by
giving notice to the Board of Directors or to the President or to the Secretary
of the Corporation. Any such resignation shall take effect at the date of
receipt of such notice or at any later time specified therein if approved or
authorized by the Board of Directors; and, unless otherwise specified in such
notice, the acceptance of the resignation shall not be necessary to make it
effective. Any vacancy occurring in any office of the Corporation by death,
resignation or removal shall be filed by the Board of Directors.
SECTION 5. Chairman of the Board.
Subject to the control of the Board of Directors, the Chairman of the
Board, if there shall be such officer, shall, if present, preside at all
meetings of the Board of Directors and stockholders.
SECTION 6. Chief Executive Officer.
The Chairman of the Board of Directors or the President, in either
case as authorized by the Board of Directors, shall be the Chief Executive
Officer of the Corporation. If the Chairman of the Board of Directors is the
Chief Executive Officer, he may designate the President to act as Chief
Executive Officer during the Chairman's absence. The Chief Executive Officer
of the Corporation shall have general and active supervision over the business,
affairs and operation of the Corporation and over its several officers, agents
and employees, subject, however, to the control of the Board. The Chief
Executive Officer shall be responsible for the implementation of all orders and
resolutions of the Board of Directors and of any committees thereof, and, in
general, shall perform all duties incident to the position of Chief Executive
Officer and such other duties as may from time to time be assigned by the Board
of Directors. The Chief Executive Officer may delegate and assign to other
officers, employees and agents of the Corporation or to committees appointed by
him such duties as the Chief Executive Officer considers proper and not
inconsistent with these By-Laws or any delegations and assignments made by the
Board or the Executive Committee.
SECTION 7. The President.
Subject to the control of the Board of Directors, and the Chairman of
the Board (to the extent of such powers as may be given by the Board of
Directors to the Chairman of the Board), the President shall have general
supervision, direction and control of the business of the Corporation and its
employees and shall exercise such general powers of management as are usually
vested in the office of President of a corporation. The President shall, in
the absence of the Chairman of the Board, preside at all meetings of the Board
of Directors and stockholders
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and shall have such other powers and duties as may from time to time be
assigned to him by the Board of Directors or prescribed by the By-Laws.
SECTION 8. Vice Presidents.
In the absence or disability of the President, the Vice President, if
there shall be such an officer, or if there be more than one, the Vice
Presidents in the order determined by the President or by the Board of
Directors (or if there be no such determination, then in the chronological
order of their election or appointment or their ranking as Executive Vice
Presidents or Senior Vice Presidents) shall perform all 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. A Vice President shall have such
other powers and perform such other duties as from time to time may be
prescribed by the Board of Directors.
SECTION 9. The Assistant Vice President.
The Assistant Vice President, if there shall be such an officer, or if
there be more than one, the Assistant Vice Presidents in the order determined
by the President (or if there be no such determination, then in the
chronological order of their election or appointment), shall perform such
duties and have such powers as from time to time may be prescribed by the Board
of Directors.
SECTION 10. The Secretary.
The Secretary shall keep or cause to be kept, at the principal office
or such other place as the Board of Directors may order, a book of minutes of
all meetings of Directors and Committees thereof and of stockholders,
containing the time and place of such meetings, whether regular or special,
and, if special, how authorized, the notice thereof given, the names of those
present at meetings of the Board of Directors and at meetings of Committees
thereof, the number of shares present or represented at stockholders meetings,
and the proceedings thereof.
The Secretary shall keep, or cause to be kept, at the Corporation's
office, or at the office of the Corporation's principal transfer agent, a share
register, or a duplicate share register, setting forth the names of the
stockholders and their addresses, the number and the classes of shares held by
each, and the number and date of cancellation of every certificate surrendered
for cancellation.
The Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and the Board of Directors required by the By-Laws or
By-Law to be given, and shall have such other powers and perform such other he
shall keep the seal of the Corporation in safe custody, duties as may be
prescribed by the Board of Directors or by the By-Laws.
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SECTION 11. The Assistant Secretary.
The Assistant Secretary, if there shall be such officer, or if there
be more than one, the Assistant Secretaries in the order determined by the
President (or if there be no such determination, then in the chronological
order of their election or appointment) shall, in the absence of the Secretary
or in the event of his inability or refusal to act, perform the duties and
exercise the powers of the Secretary and shall perform such other duties and
have such other powers as the Board of Directors may from time to time
prescribe.
SECTION 12. The Treasurer.
The Treasurer of the Corporation, who may also serve as the Chief
Financial Officer of the Corporation, shall keep and maintain, or cause to be
kept and maintained, adequate and correct accounts of the properties and
business transactions of the Corporation, including accounts of its assets,
liabilities, receipts, disbursements, gains, losses, capital, surplus, and
surplus shares, and shall send or cause to be sent to the stockholders of the
Corporation such financial statements and reports as are by law or these
By-Laws required to be sent to them. Any surplus, including earned surplus,
paid-in surplus and surplus arising from a reduction of stated capital, shall
be classified according to source and shown in a separate account. The books
of account shall at all times be open for inspection by any Director.
The Treasurer shall deposit, or cause to be deposited, all monies and
other valuables in the name and to the credit of the Corporation with such
depositaries as may be designated by the Board of Directors. He shall disburse
the funds of the Corporation as may be ordered by the Board of Directors and
shall render to the President and Directors, when they request it, an account
of all of his transactions as Treasurer, and, if applicable, as Chief Financial
Officer and of the financial condition of the Corporation, and shall have such
other powers and perform such other duties as may be prescribed by the Board of
Directors or these By-Laws.
SECTION 13. The Controller.
The Controller shall be the officer principally in charge of the
accounts of the Corporation, and shall have such other authority and duties as
may be assigned to him in accordance with these By-Laws.
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ARTICLE VI
INDEMNIFICATION
SECTION 1. General
Each person who was or is made a party or is threatened to be made a
party to or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (hereinafter a "proceeding"),
by reason of the fact that he is or was a director, officer or employee of the
Corporation or that he is or was serving at the request of the Corporation as a
director, officer or employee of another corporation or of a partnership, joint
venture, trust or other enterprise, including service with respect to an
employee benefit plan (hereinafter and "indemnitee"), whether the basis of such
proceeding is alleged action in an official capacity as a director, officer or
employee or in any other capacity while serving as a director, officer or
employee, shall be indemnified and held harmless by the Corporation to the
fullest extent authorized by the Delaware General Corporation Law, as the same
exists or may hereafter be amended (but, in the case of any such amendment,
only to the extent that such amendment permits the Corporation to provide
broader indemnification rights than such law permitted the Corporation to
provide prior to such amendment), against all expense, liability and loss
(including attorneys' fees, judgments, fines, Employee Retirement Income
Security Act of 1974 excise taxes or penalties and amounts paid in settlement)
reasonably incurred by such indemnitee in connection therewith; provided,
however, that, except as provided in this Section with respect to proceedings
to enforce rights to indemnification, the Corporation shall indemnify any such
indemnitee only if such proceeding (or part thereof) was authorized by the
Board of Directors of the Corporation.
SECTION 2. Advancement of Expenses
The right to indemnification conferred in this Section shall include
the right to be paid by the Corporation the expenses incurred in defending any
such proceeding in advance of its final disposition (hereinafter an
"advancement of expenses"); provided, however, that, if the Delaware General
Corporation Law requires, an advancement of expenses incurred by an indemnitee
in his capacity as a director or officer (and not in any other capacity in
which service was or is rendered by such indemnitee, including, without
limitation, service to an employee benefit plan) shall be made only upon
delivery to the Corporation of an undertaking, by or on behalf of such
indemnitee, to repay all amounts so advanced if it shall ultimately be
determined by final judicial decision from which there is no further right to
appeal (hereinafter a "final adjudication") that such indemnitee is not
entitled to be indemnified for such expense under this Section or otherwise.
The rights to indemnification and to the advancement of expenses conferred in
this Section shall be contract rights and such rights shall continue as to an
indemnitee who has
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ceased to be a director, officer or employee and shall inure to the benefit of
the indemnitee's heirs, executors and administrators.
If a claim under this Section is not paid in full by the Corporation
within 60 days after written claim had been received by the Corporation, except
in the case of a claim for an advancement of the expenses, in which case the
applicable period shall be 20 days, the indemnitee may at any time thereafter
bring suit against the Corporation to recover the unpaid amount of the claim.
If successful in whole or in part in any such suit, or in a suit brought by the
Corporation to recover an advancement or expenses pursuant to the terms of an
undertaking, the indemnitee shall be entitled to be paid also the expense of
prosecuting or defending such suit. In (i) any suit brought by the indemnitee
to enforce a right to indemnification hereunder (but not in a suit brought by
the indemnitee to enforce a right to an advancement of expenses) it shall be a
defense that, and (ii) in a any suit by the Corporation to recover an
advancement or expense pursuant to the terms of an undertaking the Corporation
shall be entitled to recover such expenses upon a final adjudication that, the
indemnitee has not met any applicable standard for indemnification set forth in
the Delaware General Corporation Law. Neither the failure of the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
suit that indemnification of the indemnitee is proper in the circumstances
because the indemnitee has met the applicable standard of conduct set forth in
the Delaware General Corporation Law, nor an actual determination by the
Corporation (including its Board of Directors, independent legal counsel, or
its stockholders) that the indemnitee has not met such applicable standard of
conduct, shall create a presumption that the indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by the
indemnitee, be a defense to such suit. In any suit brought by an indemnitee to
enforce a right to indemnification or to an advancement of expenses hereunder,
or by the Corporation to recover an advancement of expenses pursuant to the
terms of an undertaking, the burden of proving that the indemnitee is not
entitled to be indemnified, or such advancement of expenses, under this Section
or otherwise shall be on the Corporation.
SECTION 3. Non-Exclusivity.
The indemnification and powers set forth in this Article VI shall be
in addition to and the foregoing shall not be deemed exclusive of (i) any other
powers of the Corporation under the Certificate of Incorporation or applicable
law, or (ii) any other rights to which any person may be entitled, under any
statute, certificate or articles of incorporation, by-law, agreement, vote of
stockholders or disinterested directors, or otherwise, both as to action, his
official capacity and as to action in another capacity at the direction or
express or implied request of the Corporation while holding such position. Any
and all rights of any person hereunder shall continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such person.
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SECTION 4. Insurance.
The Corporation may purchase and maintain insurance on behalf of any
person who is or was a Director, officer, employee or agent of the Corporation,
or is or was serving at the express or implied request of the Corporation as a
Director, officer, employee, agent or trustee of another corporation,
partnership, joint venture, trust or other enterprise (including without
limitation affiliates of the Corporation), against liability asserted against
him and incurred by him 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 provision of this Article VI or under the
provisions of the Delaware General Corporation Law.
SECTION 5. Effect of Reorganization.
For the purpose of this Article VI, references to "the Corporation"
shall include, without limitation, in addition to the resulting Corporation,
any constituent Corporation (including any constituent of a constituent
corporation) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, employees, or agents, so that any person who is or was a
director, officer, employee or agent of such constituent corporation, or is or
was serving at the request of such corporation as a director, officer,
employee, agent or trustee of another corporation, partnership, joint venture,
trust or other enterprise, shall stand in the same position under the
provisions of this Article VI with respect to such constituent corporation if
its separate existence had continued.
SECTION 6. Presumptions.
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 seeking
indemnification did not act in good faith and in manner which he reasonably
believed to be in or not opposed to the best interest of the Corporation, or
with respect to any criminal action or proceeding, a presumption that the
person had reasonable cause to believe that his conduct was unlawful.
SECTION 7. Severability.
If any part of this Article VI shall be found in any action, suit or
proceeding or appeal therefrom or in any other circumstances or as to any
particular officer, Director, employee or agent to be unenforceable,
ineffective or invalid for any reason, the enforceability, effect and validity
of the remaining parts or of such parts in other circumstances shall not be
affected, except as otherwise required by applicable law; indemnification or
rights of any such person hereunder shall, as to such persons, apply only to
claims arising, or causes of action based on actions or events occurring, after
such amendment and delivery of notice of such amendment to the person or
persons so affected. Until notice of such amendment is given to the person or
persons whose rights hereunder are adversely affected, such amendment shall
have no effect on
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such rights of such persons hereunder. Any person entitled to indemnification
under the foregoing provisions of Article VI shall as to any act or omission
occurring prior to the date of receipt of such notice, be entitled to
indemnification to the same extent as had such provisions continued as By-Laws
of the Corporation without such amendment.
ARTICLE VII
CERTIFICATES OF STOCK
SECTION 1. Stock Certificates.
Every holder of stock in the Corporation shall be entitled to have a
certificate signed by, or in the name of, the Corporation by the Chairman of
the Board, if any, or the President or a Vice President and the Treasurer or an
Assistant Treasurer, or the Secretary or an Assistant Secretary of the
Corporation, certifying the number of shares owned by him in the Corporation.
If the Corporation shall be authorized to issue more than one class of stock or
more than one series of any class, the powers, designations, preferences and
relative, participating, optional or other special rights or each class of
stock or series thereof and the qualification, limitations or restrictions of
such preferences and/or rights shall be set forth in full or summarized on the
face or back of the certificate which the Corporation shall issue to represent
such class or series of stock, provided that, except as otherwise provided in
Section 202 of the General Corporation Law of Delaware, 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 participation option or other special rights of each class of stock or
series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights.
SECTION 2. Facsimile Signatures.
Any or all of the signatures on the certificate may be by facsimile.
In case any officer, transfer agent or registrant 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 3. Lost Certificates.
The Board of Directors may direct a new certificate or certificates 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 issuance of a new
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certificate or certificates, the Board of Directors may, in its discretion and
as a condition precedent to the issuance thereof, require the owner of such
lost, stolen or destroyed certificate or certificates, or his legal
representative, to give the Corporation a bond sufficient to indemnify it
against any claim that may be made against the Corporation with respect to the
certificate alleged to have been lost, stolen or destroyed.
SECTION 4. Transfers of Stock.
Upon compliance with provisions restricting the transfer or
registration of transfer of shares of stock, if any, and 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,
assignation or authority to transfer, and upon payment of any transfer taxes
due thereon, 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 5. Fixing Record Date.
In order that the Corporation may determine the stockholder entitled
to notice of or to vote at any meeting of stockholder or any adjournment
thereof, or to express consent to corporate action in writing without a
meeting, or entitled to receive payment of any dividend or other distribution
or allotment of any right, or entitled to exercise any right in respect of any
change, conversion or exchange of stock or for the purpose or any other lawful
action, the Board of Directors may fix, in advance, a record date, which shall
not be more than sixty (60) days nor less than ten (10) days before the date of
such meeting, nor more than sixty (60) days prior to any other action. 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.
SECTION 6. Registered Stockholders.
The Corporation shall be entitled to recognize the exclusive rights 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.
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ARTICLE VIII
GENERAL PROVISIONS
SECTION 1. Dividends.
Dividends upon the capital stock of the Corporation, subject to the
provisions of the Certificate of Incorporation, if any, may be declared by the
Board of Directors pursuant to law at any regular or special meeting.
Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the Certificate of Incorporation. Before payment
of any dividend, there may be set aside out of any funds of the Corporation
available for dividends such sum or sums as the Directors from time to time, in
their absolute discretion, think proper as a reserve or reserves for any
purpose which the Directors shall think conducive to the interest of the
Corporation, and the Directors may modify or abolish any such reserve in the
manner in which it was created.
SECTION 2. Seal
The corporate seal shall have inscribed thereon the name of the
Corporation, the year of its organization and the words "CORPORATE SEAL,
DELAWARE." The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
SECTION 3. Bonds.
The Board of Directors from time to time may require from any one or
more of the officers or agents of the Corporation that he or they shall give
bond for the faithful performance of duties in such form, in such sum and with
such sureties as said board may determine. The premiums for all such bonds
shall be paid by the Corporation.
SECTION 4. Voting Stock in Other Corporations.
Whenever the Corporation shall own stock of another Corporation, the
Chairman of the Board, the President, a Vice President, the Treasurer, or the
Secretary, acting either in person or by proxy, may exercise in the name and on
behalf of the Corporation all voting and subscription rights thereof, but the
Board of Directors may delegate such authority exclusively to any one or more
other persons.
SECTION 5. Execution of Writings.
Except as the Board of Directors otherwise shall direct or authorize,
deeds, transfers, contracts, bonds, notes, checks and other written obligations
shall be signed, accepted, endorsed or executed in the name and on behalf of
the Corporation by any one or more of the following officers, namely, the
Chairman of the Board, the President, any Vice President, the Treasurer, or
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the Secretary, and any such officer so acting also may seal, acknowledge and
deliver the instrument.
SECTION 6. Execution of Certifications.
Any action taken by the stockholders or the Board of Directors at any
meeting may be certified by the officer whose duty it is to keep the records
thereof or by the officer or person presiding thereat; and any such certificate
shall be conclusive evidence for all purposes that the action so certified was
taken.
SECTION 7. Contracts and Transactions.
Except as otherwise required by statute or by any provision of the
Certificate of Incorporation, any contract, transaction or act of this
Corporation or of the Board of Directors, or of a committee designate by the
Board of Directors which may be ratified by a majority in interest of a quorum
of stockholders of this Corporation at any annual meeting or any special
meeting called for such purpose, shall be as valid and binding as though
ratified by every stockholder of this Corporation; provided, however, that any
failure to submit any contract, transaction or act to the stockholders for
approval or ratification, or any failure of the stockholders to approve or
ratify such contract, transaction or act when submitted, shall not be deemed in
any way to invalidate the same or to deprive this Corporation, its Directors or
officers of their rights to proceed with such contract, transaction or action.
SECTION 8. Certificate of Incorporation.
The term "Certificate of Incorporation" as used herein shall mean the
Certificate of Incorporation of this Corporation and any and all amendments,
additions, supplements thereto adopted in accordance with applicable law.
SECTION 9. Amendment by Stockholders and Directors.
These By-Laws, except as hereinbelow provided, may be amended or
repealed, in whole or in part, and new By-Laws made by the stockholders at any
meeting of the stockholders by the affirmative vote of the holders of at least
a majority in interest of the capital stock then outstanding and entitled to
vote, provided that notice of the proposed amendment or repeal or of the
proposed making of new By-Laws shall have been given in the notice of such
meeting. Subject to the provisions of the Certificate of Incorporation, the
Directors may make, amend or repeal these By-Laws, in whole or in part, except
with respect to any provision hereof which by law, the Certificate of
Incorporation, or these By-Laws requires action by the stockholders. Any
By-Laws adopted by the Directors may be amended or repealed by the
stockholders.
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