EXHIBIT 3.1
AMENDED AND RESTATED BYLAWS
OF
FIRST FRANKLIN CORPORATION
ARTICLE I
OFFICES
Section 1. Registered Office.
The registered office of First Franklin Corporation (the "Corporation")
shall be in the City of Wilmington, County of New Castle, State of Delaware.
Section 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.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings.
Meetings of the stockholders for the election of directors or for any
other purpose shall be held at such time and 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 or in a duly executed waiver
of notice thereof.
The board of directors may, in its sole discretion, determine that the
meeting shall not be held at any place, but may instead be held solely by means
of remote communication as authorized by Section 211(a)(2) of the General
Corporation Law of Delaware. If so authorized, and subject to such guidelines
and procedures as the board of directors may adopt, stockholders and
proxyholders not physically present at a meeting of stockholders may, by means
of remote communication, participate in a meeting of stockholders and be deemed
present in person and vote at a meeting of stockholders whether such meeting is
to be held at a designated place or solely by means of remote communication,
provided that (i) the Corporation shall implement reasonable measures to verify
that each person deemed present and permitted to vote at the meeting by means of
remote communication is a stockholder or proxyholder, (ii) the Corporation shall
implement reasonable measures to provide such stockholders and proxyholders a
reasonable opportunity to participate in the meeting and to vote on matters
submitted to the stockholders, including an opportunity to read or hear the
proceedings of the meeting substantially concurrently
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with such proceedings, and (iii) if any stockholder or proxyholder votes or
takes other action at the meeting by means of remote communication, a record of
such vote or other action shall be maintained by the Corporation.
Section 2. Annual Meetings.
Unless directors are elected by written consent in lieu of an annual
meeting, an annual meeting of stockholders shall be held on such date and at
such time as shall be designated from time to time by the board of directors and
stated in the notice of the meeting, at which meeting the stockholders shall
elect a board of directors and transact such other business as may properly be
brought before the 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. The notice shall also set forth the purpose or purposes for
which the meeting is called.
Section 3. Special Meetings.
Unless otherwise prescribed by law or by the Certificate of Incorporation,
special meetings of stockholders, for any purpose or purposes, may be called by
the president and shall be called by such individual at the written request of a
majority of the directors then in office. Such request shall state the purpose
or purposes of the proposed meeting. Written notice of a special meeting 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 4. Quorum and Adjournment.
Except as otherwise provided by law or by the Certificate of
Incorporation, the holders of a majority of the capital stock issued and
outstanding and entitled to vote at any meeting of the stockholders of the
Corporation, present in person or represented by proxy, shall constitute a
quorum for the transaction of business. In the absence of a quorum, the
presiding officer of the meeting or the stockholders present in person or
represented by proxy shall have power to adjourn the meeting from time to time,
to reconvene at the same place or some other place, without notice other than
announcement at the meeting at which the adjournment is taken. 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
noticed. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder entitled to vote at the
meeting.
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Section 5. Voting.
At all meetings for the election of directors at which a quorum is
present, the candidates receiving the greatest number of votes shall be elected.
Except as otherwise required by law, the Certificate of Incorporation or these
bylaws, any other matter brought before any meeting of stockholders shall be
decided by the vote of the holders of a majority of the stock present in person
or by proxy and entitled to vote on the matter. Each stockholder shall be
entitled to cast one vote for each share of the capital stock held by such
stockholder. Such votes may be cast in person or by proxy. The board of
directors, in its discretion, or the officer of the Corporation presiding at a
meeting of stockholders, in his discretion, may require that any votes cast at
such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote.
The officer of the Corporation 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 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, for a period of at least ten days prior to the meeting,
during ordinary business hours, at the principal place of business of the
Corporation. If the meeting is to be held at a place, then the list shall 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. If the meeting
is to be held solely by means of remote communication, then the list shall also
be open to the examination of any stockholder during the whole time of the
meeting on a reasonably accessible electronic network, and the information
required to access such list shall be provided with the notice of the meeting.
Section 7. Stock Ledger.
The stock ledger of the Corporation shall be the only evidence as to who
are the stockholders entitled to examine the stock ledger, the list required by
Section 6 of this Article II or the books of the Corporation or to vote in
person or by proxy at any meeting of stockholders.
Section 8. Proxies.
A stockholder entitled to vote at a meeting of stockholders or to express
consent or dissent to corporate action in writing without a meeting may
authorize another person or persons to act for him by proxy. Proxies solicited
on behalf of the board of directors shall be voted as directed by the
stockholder or, in the absence of such direction, as determined by a majority of
the board of directors. No proxy shall be valid after three years from the date
of its execution, unless the proxy provides for a longer period.
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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 make 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 person presiding at the meeting shall
appoint one or more inspectors to act at the meeting. Each inspector, before
entering upon the discharge of the duties of inspector, shall take and sign an
oath faithfully to execute the duties of inspector with strict impartiality and
according to the best of such inspector's ability.
The inspectors of election shall: (i) ascertain the number of shares
outstanding and the voting power of each; (ii) determine the shares represented
at a meeting and the validity of proxies and ballots; (iii) count all votes and
ballots; (iv) determine and retain for a reasonable period a record of the
disposition of any challenges made to any determination by the inspectors; and
(v) certify their determination of the number of shares represented at the
meeting, and their count of all votes and ballots.
Section 10. Conduct of Meetings.
Annual and special meetings shall be conducted in accordance with the most
current edition of Robert's Rules of Order unless otherwise prescribed by law or
these bylaws. The board of directors shall designate the president, when
present, to preside at such meetings.
Section 11. New Business and Nominations.
At any meeting of the stockholders, only such business shall be conducted
as shall have been properly brought before the meeting. To be properly brought
before a meeting, business must be (i) specified in the notice of meeting (or
any supplement thereto) given by or at the direction of the board of directors;
(ii) otherwise properly brought before the meeting by or at the direction of the
board of directors; or (iii) otherwise properly brought before the meeting by a
stockholder of record entitled to vote at the meeting. Candidates for election
as a director may be nominated either (i) by the board of directors or a
committee appointed by the board of directors, including the nominating
committee, or (ii) by nomination by any stockholder of record entitled to vote
at the meeting where directors will be elected, provided that such nomination is
properly brought before the meeting.
For business or a nomination to be properly brought before an annual
meeting by a stockholder, the stockholder must have given timely notice thereof
in writing to the secretary of the Corporation. To be timely, a stockholder's
notice must be (i) in the event of an annual meeting of stockholders, received
by the Secretary of the Corporation not more than 120 days and not less than 90
days in advance of the anniversary date of the immediately preceding annual
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meeting; provided, however, that in the event that the annual meeting is called
on a date that is not within 30 days before or after such anniversary date,
notice by the stockholder must be so received not later than the close of
business on the tenth day following the day on which notice of the date of the
annual meeting was mailed or public disclosure of the date of the annual meeting
was made, whichever first occurs; or (ii) in the event of a special meeting of
stockholders, such notice shall be received by the Secretary of the Corporation
not later than the close of business on the tenth day following the day on which
notice of the meeting is first mailed to stockholders or public disclosure of
the date of the special meeting was made, whichever first occurs. Every such
notice by a stockholder shall set forth:
(a) the name and address, as they appear on the Corporation's books, of
the stockholder of the Corporation who intends to make a nomination
or bring up any other matter and the name and address of the
beneficial owner on whose behalf the nomination or proposal is being
made, if any;
(b) the number of shares of the Corporation's voting stock owned of
record and beneficially by such stockholder and such beneficial
owner, if any;
(c) with respect to notice of an intent to make a nomination, a
description of all arrangements or understandings among the
stockholder and such beneficial owner, if any, and each nominee and
any other person or persons (naming such person or persons) pursuant
to which the nomination or nominations are to be made by the
stockholder;
(d) with respect to an intent to make a nomination, such other
information regarding each nominee proposed by such stockholder as
would have been required to be included in a proxy statement filed
pursuant to the proxy rules of the Securities and Exchange
Commission had each nominee been nominated by the board of directors
of the Corporation; and
(e) with respect to the notice of an intent to bring up any other
matter, a description of the matter, and any material interest of
the stockholder and the beneficial owner, if any, in the matter.
Notice of intent to make a nomination shall be accompanied by the written
consent of each nominee to serve as director of the Corporation if so elected.
No business shall be conducted at any annual meeting except in accordance
with the provisions of this section. The presiding officer of the annual meeting
shall, if the facts warrant, determine and declare to the meeting that business
was not properly brought before the meeting in accordance with this section, in
which case such business shall not be transacted. Notwithstanding the foregoing,
if the stockholder does not appear in person or by proxy at the meeting to
present the nominees or the matter, such proposed business shall not be
transacted.
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Notwithstanding the foregoing provisions of this bylaw, a stockholder
shall also comply with all applicable requirements of the Securities Exchange
Act of 1934 (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
or any successor rule or regulation.
Section 12. Consent of Stockholders in Lieu of Meeting.
Unless otherwise provided in the certificate of incorporation, any action
required to be taken at any annual or special meeting of stockholders of the
Corporation, or any action which may be taken at any annual or special meeting
of such stockholders, may be taken without a meeting, without prior notice and
without a vote, if a consent in writing, setting forth the action so taken,
shall be signed by the holders of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize or take such action
at a meeting at which all shares entitled to vote thereon were present and
voted. Prompt notice of the taking of the corporate action without a meeting by
less than unanimous written consent shall be given to those stockholders who
have not consented in writing. Stockholders may act by written consent to elect
directors; provided, however, that if such consent is less than unanimous, such
action by written consent may be in lieu of holding an annual meeting only if
all of the directorships to which directors could be elected at an annual
meeting held at the effective time of such action are vacant and are filled by
such action.
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors.
The number of directors shall be five. The directors may fix or change the
number of directors from time to time and at any time by resolution of the
board; provided, however, that no reduction in the number of directors shall, of
itself, have the effect of shortening the term of any incumbent director.
Directors need not be residents of the State of Delaware and need not be
stockholders of the Corporation. The directors shall be elected at annual
meetings of the stockholders.
Section 2. Classes; Vacancies.
The board of directors shall divide the directors into three classes and,
when the number of directors is changed, shall determine the class or classes to
which the increased or decreased number of directors shall be apportioned;
provided, that each class shall be equal or nearly equal in size as possible;
provided, further, that no decreases in the number of directors shall affect the
term of any director then in office, except the initial directors. At each
annual meeting of
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stockholders subsequent to the initial special meeting of stockholders,
directors elected to succeed those whose terms are expiring shall be elected for
a term of office to expire at the third succeeding annual meeting of
stockholders and when their respective successors are elected and qualified.
Vacancies in the board of directors, however caused, shall be filled by a
majority vote of the directors then in office, whether or not a quorum, and any
director so chosen shall hold office for a term expiring at the annual meeting
of stockholders at which the term of the class to which he has been chosen
expires and when his successor is elected and qualified.
Section 3. Duties and Powers.
The business of the Corporation shall be managed by or under the direction
of the 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 bylaws directed or required to be
exercised or done by the stockholders.
Section 4. Meetings.
The board of directors of the Corporation may hold meetings, both regular
and special, either within or without the State of Delaware. The annual regular
meeting of the board of directors shall be held without other notice than this
bylaw immediately after, and at the same place as, the annual meeting of
stockholders. Additional regular meetings of the board of directors may be held
without notice at such time and at such place as may from time to time be
determined by the board of directors. Special meetings of the board of directors
may be called by the chairman, the president or a majority of directors then in
office. Notice thereof stating the place, date and hour of the meeting shall be
given to each director either by mail not less than forty-eight hours before the
date of the meeting, or by telephone or telegram on twenty-four hours' notice.
Section 5. Quorum.
Except as may be otherwise specifically provided by law, the Certificate
of Incorporation or these bylaws, at all meetings of the board of directors, a
majority of the directors then in office 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. 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 at the meeting, until a quorum
shall be present.
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Section 6. Actions Without a Meeting.
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
the members of the board of directors or committee, as the case may be, consent
thereto in writing or by electronic transmission, and the writing(s) or
electronic transmission(s) are filed with the minutes of proceedings of the
board of directors or committee.
Section 7. Meetings by Means of Communications Equipment.
Members of the board of directors of the Corporation, or any committee
designated by the board of directors, may participate in a meeting by means of a
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and participating in a
meeting pursuant to this Section 7 shall constitute presence in person at such
meeting.
Section 8. Compensation.
The board of directors shall have the authority to fix compensation of
directors. The directors may be paid their reasonable expenses, if any, of
attendance at each meeting of the board of directors and may be paid a
reasonable sum for service on the board of directors. No such payment shall
preclude any director from serving the Corporation in any other capacity and
receiving compensation there for. Members of special or standing committees may
be allowed reasonable compensation for attending committee meetings.
Section 9. Corporate Books.
The directors may keep the books of the Corporation, except such as are
required by law to be kept within the state, outside of the State of Delaware at
such place or places as they may from time to time determine.
Section 10. Resignation.
Any director may resign at any time by sending a written notice of such
resignation to the home office of the Corporation addressed to the president.
Unless otherwise specified therein such resignation shall take effect upon
receipt thereof by the president. More than three consecutive absences from
regular meetings of the board of directors, unless excused by resolution of the
board, shall automatically constitute a resignation, effective when such
resignation is accepted by the board of directors.
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Section 11. Interested Directors.
No contract or transaction between the Corporation and one or more of its
directors or officers, or between the Corporation and any other corporation,
partnership, association, or other organization in which one or more of its
directors or officers, are directors or officers, or have a financial interest,
shall be void or voidable solely for this reason, or solely because the director
or officer is present at or participates in the meeting of the board or
committee which authorizes the contract or transaction, or solely because any
such director's or officer's votes are counted for such purpose, if: (i) the
material facts as to the director's or officer's relationship or interest and as
to the contract or transaction are disclosed or are known to the board of
directors or the committee, and the board or committee in good faith authorizes
the contract or transaction by the affirmative votes of a majority of the
disinterested directors, even though the disinterested directors be less than a
quorum; or (ii) the material facts as to the director's or officer's
relationship or interest and as to the contract or transaction are disclosed or
are known to the shareholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the shareholders;
or (iii) the contract or transaction is fair as to the Corporation as of the
time it is authorized, approved or ratified, by the board of directors, a
committee or the shareholders. Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the board of directors or
of a committee which authorizes the contract or transaction.
Section 12. Presumption of Assent.
A director of the Corporation who is present at a meeting of the board of
directors at which action on any Corporation matter is taken shall be presumed
to have assented to the action taken unless his dissent or abstention shall be
entered in the minutes of the meeting or unless he shall file his written
dissent to such action with the person acting as the secretary of the meeting
before the adjournment thereof or shall forward such dissent by registered mail
to the secretary of the Corporation within five days after the date he receives
a copy of the minutes of the meeting. Such right to dissent shall not apply to a
director who voted in favor of such action.
ARTICLE IV
EXECUTIVE AND OTHER COMMITTEES
Section 1. Appointment.
The board of directors, by resolution adopted by a majority of the full
board, may designate an executive committee, an audit committee, a nominating
committee and such other committees as the board may deem necessary, appropriate
or desirable, to consist of one or more directors of the Corporation. The
designation of any committee pursuant to this Article IV and the delegation of
authority thereto shall not operate to relieve the board of directors, or any
director, of any responsibility imposed by law or regulation. In no event,
however, shall any committee have the power or authority of the board of
directors with reference to amending the
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Certificate of Incorporation; adopting an agreement of merger or consolidation;
recommending to the stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets; recommending to the
stockholders a dissolution of the Corporation or a revocation of a dissolution;
amending the bylaws of the Corporation; and unless the resolution or bylaws
expressly so provide, the committee shall not have the power or authority to
declare a dividend or to authorize the issuance of stock.
Section 2. Executive Committee.
The executive committee, when the board of directors is not in session,
shall have and may exercise all the powers and authority of the board of
directors in the management of the business and affairs of the Corporation, and
may authorize the seal of the Corporation to be affixed to all papers which may
require it, except to the extent, if any, that such powers and authority shall
be limited by law or by the resolution appointing the executive committee.
Section 3. Alternate Members.
The board 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 he or they constitute a quorum, may unanimously appoint
another member of the board of directors to act at the meeting in the place of
any such absent or disqualified member.
Section 4. Meetings.
Regular meetings of committees may be held without notice at such times
and places as the committee may fix from time to time by resolution. Special
meetings of a committee may be called by any member thereof upon not less than
one day's notice stating the place, date and hour of the meeting, which notice
may be written or oral. Any members of the committee may waive notice of any
meeting and no notice of any meeting need be given to any member thereof who
attends in person. The notice of a meeting of a committee need not state the
business proposed to be transacted at the meeting.
Section 5. Quorum.
A majority of the members of a committee shall constitute a quorum for the
transaction of business at the meeting thereof, and action of a committee must
be authorized by the affirmative vote of a majority of the members present at a
meeting at which a quorum is present.
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Section 6. Action Without a Meeting.
Any action required or permitted to be taken by a committee at a meeting
may be taken without a meeting if a consent in writing, setting forth the action
so taken, shall be signed by all of the members of the committee.
Section 7. Vacancies.
Any vacancy in a committee may be filled by a resolution adopted by a
majority of the full board of directors.
Section 8. Resignations and Removal.
Any member of a committee may be removed at any time with or without cause
by resolution adopted by a majority of the full board of directors. Any members
of a committee may resign from the committee at any time by giving written
notice to the president or secretary of the Corporation. Unless otherwise
specified therein, such resignation shall take effect upon receipt. The
acceptance of such resignation shall not be necessary to make it effective.
Section 9. Procedure.
Each committee may elect a presiding officer from its members and may fix
its own rules of procedure which shall not be inconsistent with these bylaws. It
shall keep regular minutes of its proceedings and report the same to the board
of directors for its information at the meeting thereof held next after the
proceedings shall have been taken.
ARTICLE V
OFFICERS
Section 1. General.
The officers of the Corporation shall be chosen by the board of directors
and shall include a president, a secretary and a treasurer. The board of
directors may designate one or more vice presidents, assistant secretaries,
assistant treasurers and other officers. Any number of offices may be held by
the same person. The officers of the Corporation need not be stockholders or
directors of the Corporation.
Section 2. Election; Term; Compensation.
The board of directors at its first meeting held after the annual meeting
of stockholders shall elect annually the officers of the Corporation who shall
exercise such powers and perform such duties as shall be set forth in these
bylaws and as determined from time to time by the board of directors. All
officers of the Corporation shall serve at the pleasure of the board of
directors
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and shall hold their office until their successors are chosen and qualified, or
until their earlier resignation or removal. The compensation of all officers of
the Corporation shall be fixed by the board of directors.
Section 3. Removal.
Any officer may be removed by the board of directors, but such removal,
other than for cause, shall be without prejudice to the contract rights, if any,
of the person so removed.
Section 4. President.
The president shall be the chief executive officer. The president shall,
subject to the control of the board of directors, have general supervision of
the business of the Corporation and shall see that all orders and resolutions of
the board of directors are carried into effect. He shall execute all bonds,
mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to
be otherwise signed and executed and except that the other officers of the
Corporation may sign and execute documents when so authorized by these bylaws,
the board of directors or the president. The president shall also perform such
other duties and may exercise such other powers as from time to time assigned to
him by these bylaws or by the board of directors.
Section 5. Vice-President.
At the request of the president or in his absence or in the event of his
inability or refusal to act, the vice-president or the vice-presidents if there
is more than one (in the order designated by the board of directors) shall
perform the duties of the president, and who so acting, shall have all the
powers and be subject to all the restrictions upon the president. Each
vice-president shall perform such other duties and have such other powers as the
board of directors from time to time may prescribe. The board of directors may
designate one or more vice-presidents as executive vice-president or senior
vice-president.
Section 6. Secretary.
The secretary shall attend all meetings of the board of directors and all
meetings of stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the secretary shall also perform like duties
for the standing committees when required. The secretary shall give, or cause to
be given, notice of all meetings of the stockholders and special meetings of the
board of directors, and shall perform such other duties as may be prescribed by
the board of directors or president, under whose supervision he shall be. If the
secretary shall be unable or shall refuse to cause to be given notice of all
meetings of the stockholders and special meetings of the board of directors, and
if there be no assistant secretary, then either the board of directors or the
president may choose another officer to cause such notice to be given. The
secretary shall have custody of the seal of the Corporation and the secretary or
any assistant
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secretary, if there be one, shall have authority to affix the same to any
instrument requiring it and when so affixed, it may be attested by the signature
of the secretary or the signature of any such assistant secretary. The board of
directors may give general authority to any other officer to affix the seal of
the Corporation and to attest the affixing by his signature. The secretary shall
see that all books, reports, statements, certificates and other documents and
records required by law to be kept or filed are properly kept or filed, as the
case may be.
Section 7. 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 Corporation and shall deposit all moneys and other valuable
effects in the name and to the credit of the Corporation in such depositories as
may be designated by the board of directors. The treasurer shall disburse the
funds of the Corporation as may be ordered by the board of directors, taking
proper vouchers for such disbursements, and shall render to the president and
the board of directors, at its regular meetings, or when the board of directors
so requires, an account of all his transactions as treasurer and of the
financial condition of the Corporation. If required by the board of directors,
the treasurer shall give the Corporation a bond in such sum and with such surety
or sureties as shall be satisfactory to the board of directors for the faithful
performance of the duties of his office and for the restoration to the
Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the Corporation.
Section 8. Assistant Secretaries.
Except as may be otherwise provided in these bylaws, assistant
secretaries, if there be any, shall perform such duties and have such powers as
from time to time may be assigned to them by the board of directors, the
president, any vice-president, if there be one, or the secretary, and in the
absence of the secretary or in the event of his disability or refusal to at,
shall perform the duties of the secretary, and when so acting, shall have all
the powers of and be subject to all the restrictions upon the secretary.
Section 9. Assistant Treasurers.
Assistant treasurers, if there be any, shall perform such duties and have
such powers as from time to time may be assigned to them by the board of
directors, the president, any vice-president, if there be one, or the treasurer,
and in the absence of the treasurer, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the treasurer. If required
by the board of directors, an assistant treasurer shall give the Corporation a
bond in such sum and with such surety or sureties as shall be satisfactory to
the board of directors for the faithful performance of the duties of his office
and for the restoration to the Corporation, in case of his death, resignation,
retirement or removal from office, of all books, papers, vouchers, money and
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other property of whatever kind in his possession or under his control belonging
to the Corporation.
Section 10. Other Officers.
Such other officers as the board of directors may choose shall perform
such duties and have such powers as from time to time may be assigned to them by
the board of directors. The board of directors may delegate to any other officer
of the Corporation the power to choose such other officers and to prescribe
their respective duties and powers.
ARTICLE VI
STOCK
Section 1. Form of Certificates.
Every holder of stock in the Corporation shall be entitled to have a
certificate signed, in the name of the Corporation (i) by the chairman or vice
chairman of the board of directors or the president or a vice-president and (ii)
by the treasurer or an assistant treasurer, or the secretary or an assistant
secretary of the Corporation, certifying the number of shares owned by him in
the Corporation.
Section 2. Signatures.
Any or all signatures on a certificate may be a facsimile. In case any
officer, transfer agent or registrar who has signed or whose facsimile signature
has been placed upon a certificate shall have ceased to be such officer,
transfer agent or registrar before such certificate is issued it may be issued
by the Corporation with the same effect as if he were such officer at the date
of issue.
Section 3. Lost Certificates.
The Corporation may issue a new certificate in place of any certificate
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, and may, in its
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen or destroyed certificate, or his legal
representative, to give the Corporation a bond in such sum as it may direct as
indemnity 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.
Stock of the Corporation shall be transferable in the manner prescribed by
law and in these bylaws. Transfers of stock shall be made on the books of the
Corporation only by the
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person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate there for, which shall be
cancelled before a new certificate shall be issued.
Section 5. Record Date.
In order that the Corporation may determine the stockholders entitled to
notice of or to vote at any meeting of stockholders or any adjournment thereof,
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 days 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; provided, however,
that the board of directors may fix a new record date for the adjourned meeting.
Section 6. Beneficial Owners.
The Corporation shall be entitled to recognize the exclusive right of a
person registered on its books as the owner of shares to receive dividends, and
to vote as such owner, and to hold liable for calls and assessments a person
registered on its books as the owner of shares, and shall not be bound to
recognize any equitable or other claim to or interest in such share or shares on
the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by law.
ARTICLE VII
NOTICES
Section 1. Notices.
Whenever written notice is required by law, the Certificate of
Incorporation or these bylaws, to be given to any director, member of a
committee or stockholder, such notice may be given by mail, addressed to such
director, member of a committee 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 deposited in the
United States mail. Written notice may also be given personally or by telegram,
telex, cable, facsimile, electronic mail or other electronic transmission in
accordance with applicable law.
Section 2. Waivers of Notice.
Whenever any notice is required by law, the Certificate of Incorporation
or these bylaws, to be given to any director, member of a committee or
stockholder, a waiver thereof in writing,
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signed by the person or persons entitled to said notice, whether before or after
the time stated therein, shall be deemed equivalent thereto.
ARTICLE VIII
GENERAL PROVISIONS
Section 1. Dividends.
Dividends upon the common stock of the Corporation, subject to the
provisions of the Certificate of Incorporation if any, may be declared by the
board of directors at any regular or special meeting, and may be paid in cash,
in property, or in shares of the capital stock.
Section 2. Disbursements.
All checks or demands for money and notes of the Corporation shall be
signed by such officer or officers or such other person or persons as the board
of directors may from time to time designate.
Section 3. Fiscal Year.
The fiscal year of the Corporation shall be fixed by resolution of the
board of directors.
Section 4. Corporate Seal.
The Corporation seal shall have been 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.
ARTICLE IX
AMENDMENTS
Section 1. Amendments to Bylaws.
These bylaws may be altered, amended or repealed, in whole or in part, or
new bylaws may be adopted by the stockholders or by the board of directors if
notice of such alteration, amendment, repeal or adoption of new bylaws is
contained in the notice of such meeting of stockholders or board of directors,
as the case may be.
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ARTICLE X
INDEMNIFICATION
Section 1. Indemnification as of Right.
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 threatened or instituted directly by the Corporation) by
reason of the fact that he is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
director, trustee, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by the person in connection with such action,
suit or proceeding if the person acted in good faith and in a manner the person
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 the person's conduct was unlawful. 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 2. Discretionary Indemnification.
The Corporation shall have power to 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 which is threatened or instituted by the Corporation
directly (rather than a derivative action in the right of the Corporation) to
procure a judgment in its favor by reason of the fact that the person is or was
a director, officer, employee or agent of the Corporation, or is or was serving
at the request of the Corporation as a director, trustee, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise against expenses (including attorneys' fees) actually and reasonably
incurred by the person in connection with the defense or settlement of such
action or suit if the person acted in good faith and in a manner the person
reasonably believed to be in or not opposed to the best interests of the
Corporation and 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 for negligence or misconduct in the performance of his duty to the
Corporation unless and only to the extent that the Court of Chancery of the
State of Delaware or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery of the State
of Delaware or such other court shall deem proper.
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Section 3. Indemnification as of Right for Expenses.
To the extent that a present or former director, trustee, officer,
employee or agent has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in Sections 1 and 2 above, or in
defense of any claim, issue or matter therein, such person shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred by
such person in connection therewith.
Section 4. Determination Required.
Any indemnification under Sections 1 and 2 above (unless ordered by a
court) shall be made by the Corporation only as authorized in the specific case
upon a determination that indemnification of the present or former director,
trustee, officer, employee or agent is proper in the circumstances because the
person has met the applicable standard of conduct set forth in Sections 1 and 2
above. Such determination shall be made (i) by majority vote of the directors
who are not parties to such action, suit or proceeding, even though less than a
quorum, or (ii) by a committee of such directors designated by majority vote of
such directors, even though less than a quorum, or (iii) if there are no such
directors or if such directors so direct, by independent legal counsel in a
written opinion, or (iv) by the stockholders.
Section 5. Advances for Expenses.
Expenses (including attorneys' fees) incurred in defending a civil,
criminal, administrative or investigative action, suit or proceeding may be paid
by the Corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such director,
trustee, officer, employee or agent to repay such amount if it shall ultimately
be determined that such person is not entitled to be indemnified by the
Corporation as authorized in this section.
Section 6. Indemnification Not Exclusive.
The indemnification and advancement of expenses provided by, or granted
pursuant to, this Article X shall not be exclusive of any other rights to which
those seeking indemnification or advancement of expenses may be entitled under
any bylaw, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in such person's official capacity and as to action
in another capacity while holding such office, and shall continue as to a person
who has ceased to be a director, trustee, officer, employee or agent and shall
inure to the benefit of the heirs, executors and administrators of such a
person.
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Section 7. Insurance.
The Corporation shall have power to 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 request of the Corporation as a
director, trustee, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any liability
asserted against such person and incurred by such person in any such capacity,
or arising out of such person's status as such, whether or not the Corporation
would have the power to indemnify him against such liability under the
provisions of this Article X.
Section 8. Definitions.
For the purposes of this Article X, references to "the Corporation"
include all constituent corporations absorbed in a consolidation or merger as
well as the resulting or surviving corporation so that any person who is or was
a director, trustee, officer, employee or agent of such a constituent
corporation or is or was serving at the request of such constituent corporation
as a director, trustee, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise shall stand in the same
position under the provisions of this Article Seven with respect to the
resulting or surviving corporation as he would if he had served the resulting or
surviving corporation in the same capacity.
For purposes of this section, references to "other enterprises" shall
include employee benefit plans; references to "fines" shall include any excise
taxes assessed on a person with respect to any employee benefit plan; and
references to "serving at the request of the Corporation" shall include any
service as a director, officer, employee or agent of the Corporation which
imposes duties on, or involves services by, such director, officer, employee or
agent with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner such person
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the Corporation" as referred to in this
section.
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