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EXHIBIT 3.2
ABM INDUSTRIES INCORPORATED
BY-LAWS
As Restated Effective June 15, 1999
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 stockholders 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 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
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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.
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 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
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. 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, arranged in alphabetical order, and
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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.
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 by-laws.
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 proxy, shall 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
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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 by-laws, 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
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
by-laws 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.
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 eleven.
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
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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 by-laws 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 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 of incorporation or by these by-laws 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
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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, 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 notice; (iii) a description of all arrangements or
understandings between the stockholder and each nominee and any other person or
persons (naming such person or persons) pursuant to which the nomination or
nominations are to be made by the stockholder; (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 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.
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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 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 by-laws.
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
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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 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 by-laws, any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting, if all members of the board 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.
Section 4.10. Conference Communication. Unless otherwise restricted
by the certificate of incorporation or these by-laws, 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 disqualified member. Any such
committee, to the extent provided in the resolutions of the Board of Directors,
shall
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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 by-laws 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.
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 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
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occurring in any office of the Corporation shall be filled by the Board of
Directors or by 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 by-laws.
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 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.
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
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meeting, or approvals of the minutes of meetings executed pursuant to these
by-laws 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
by-laws 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 by-laws.
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.
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 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
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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. 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 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 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'
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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; 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, 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
14
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 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 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.
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,
15
or the treasurer or an assistant treasurer, certifying the number of shares
owned by him in the Corporation. Any or all of 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 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 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
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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.
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 otherwise.reproduced.
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 Delaware, the certificate of incorporation and these by-laws, the
Board of Directors may by majority vote of those present at any meeting at which
a quorum is present amend these by-laws, or enact such other by-laws as in their
judgment may be advisable for the regulation of the conduct of the affairs of
the Corporation.