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EXHIBIT 3b
AMENDED AND RESTATED BY-LAWS
OF
THE GEON COMPANY
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TABLE OF CONTENTS
Page
ARTICLE 1. STOCKHOLDERS...................................................................... 1
Section 2. Annual Meeting.......................................................... 1
Section 3. Special Meetings........................................................ 1
Section 4. Notice of Meetings...................................................... 1
Section 5. Quorum and Adjournment.................................................. 2
Section 6. Organization of Meetings................................................ 2
Section 7. Voting ................................................................. 2
Section 8. Inspectors of Election.................................................. 3
Section 9. Action by Consent....................................................... 3
Section 10. Introduction of Business at a Meeting
of Stockholders................................................ 3
ARTICLE 11. CAPITAL STOCK ................................................................... 6
Section 12. Certificates............................................................ 6
Section 13. Transfer................................................................ 7
Section 14. Record Dates............................................................ 7
Section 15. Lost Certificates....................................................... 7
ARTICLE 16. DIRECTORS.......................................................................8
Section 17. Responsibilities........................................................ 8
Section 18. Number and Term......................................................... 8
Section 19. Quorum ................................................................. 8
Section 20. Vacancies............................................................... 8
Section 21. Nomination of Directors................................................. 8
Section 22. Meetings................................................................ 9
Section 23. Notice ................................................................. 9
Section 24. Committees.............................................................. 9
Section 25. Action by Consent....................................................... 10
Section 26. Compensation............................................................ 10
Section 27. Removal................................................................. 10
Section 28. Traveling Expenses...................................................... 10
ARTICLE 29. OFFICERS......................................................................11
Section 30. Titles and Election..................................................... 11
Section 31. Terms of Office......................................................... 11
Section 32. Removal................................................................. 11
Section 33. Resignations............................................................ 11
Section 34. Vacancies............................................................... 11
Section 35. Chairman of the Board................................................... 11
Section 36. Vice Chairman of the Board.............................................. 11
Section 37. President............................................................... 12
Section 38. Chief Executive Officer................................................. 12
Section 39. Vice-President.......................................................... 12
Section 40. Secretary............................................................... 13
Section 41. Treasurer............................................................... 13
Section 42. Duties of Officers may be Delegated..................................... 13
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ARTICLE 43. INDEMNIFICATION.................................................................. 13
Section 44. Actions by Others....................................................... 13
Section 45. Actions by or in the Right of the
Corporation.................................................... 14
Section 46. Successful Defense...................................................... 15
Section 47. Specific Authorization.................................................. 15
Section 48. Advance of Expenses..................................................... 15
Section 49. Right of Indemnity not Exclusive........................................ 16
Section 50. Insurance............................................................... 16
Section 51. Preclusion.............................................................. 17
Section 51. Right of Indemnity not Exclusive........................................ 17
Section 52. Insurance............................................................... 17
Section 53. Invalidity of any Provisions of
this Article................................................... 17
Section 54. Definitions............................................................. 17
Section 55. Notice ................................................................. 20
ARTICLE 56. WAIVER OF NOTICE................................................................. 20
Section 57. Waiver of Notice........................................................ 20
ARTICLE 58. CHECKS, NOTES, ETC............................................................... 20
Section 59. Checks, Notes, Etc...................................................... 20
ARTICLE 60. MISCELLANEOUS PROVISIONS......................................................... 21
Section 61. Offices................................................................. 21
Section 62. Fiscal Year............................................................. 21
Section 63. Corporate Seal.......................................................... 21
Section 64. Books ................................................................. 21
Section 65. Voting of Stock......................................................... 21
ARTICLE 66. AMENDMENTS...................................................................... 22
Section 67. Amendments.............................................................. 22
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BY-LAWS
OF
THE GEON COMPANY
Article 68.
STOCKHOLDERS
Section 69. Annual Meeting. The annual meeting of the
stockholders of the Corporation, for the election of Directors and for the
transaction of such other business as may properly come before the meeting,
shall be held either within or without the State of Delaware, at such place as
the Board of Directors may designate in the call or in a waiver of notice
thereof, on such date as the Directors may determine from time to time each year
beginning with the year 1994 (or if such day be a legal holiday, then on the
next succeeding day not a holiday). The Board of Directors acting by resolution
may postpone and reschedule any previously scheduled annual meeting of
stockholders.
Section 70. Special Meetings. Special meetings of the
stockholders may be called by the Chief Executive Officer or by the Board of
Directors, pursuant to a resolution adopted by a majority of the total number of
directors which the Board of Directors would have if there were no vacancies
(the "Whole Board"), at such times and at such place either within or without
the State of Delaware as may be stated in the call or in a waiver of notice
thereof.
Section 71. Notice of Meetings. Notice of the time, place and
purpose of every meeting of stockholders shall be delivered personally or mailed
not less than ten (10) days nor more than sixty (60) days before the date fixed
for such meeting to each stockholder of record entitled to vote, at his post
office address appearing upon the records of the Corporation or at such other
address as shall be furnished in writing by him to the corporation for such
purpose. Such further notice shall be given as may be required by law or by
these By-Laws. Any meeting may be held without notice if all stockholders
entitled to vote are present, in person or by proxy, of if notice is waived in
writing, either before or after the meeting, by those not present. Any special
meeting of the stockholders may be cancelled by resolution of the Whole Board
upon public notice given prior to the date previously scheduled for such meeting
of the stockholders.
Section 72. Quorum and Adjournment. At all meetings of
stockholders, annual or special, other than meetings a quorum at which is fixed
by statute, and except as otherwise provided by these By-Laws, in order to
constitute a quorum there shall be present, either in person or by proxy, the
holders of record of at least a majority of the shares of the stock of the
Corporation, issued and outstanding and entitled to vote at such meeting. The
stockholders present at a duly called meeting at which a quorum is present may
continue to transact business until adjournment, notwithstanding the withdrawal
of holders of a sufficient number of shares such that less than a quorum
remains. The chairman of the meeting or a majority of the shares so represented
may adjourn the meeting from time to time, whether or not there is a quorum
present. No notice of the time and place of adjourned meetings need be given
except as required by law.
Section 73. Organization of Meetings. Meetings of the
stockholders shall be presided by the Chairman of the Board, if there be one, or
if he is not present by the President, or if he is not present, by a chairman to
be chosen at the meeting. The Secretary of the Corporation, or in the Secretary
of the Corporation's absence an Assistant Secretary, shall act as Secretary of
the meeting, if present.
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Section 74. Voting. Except as otherwise provided by statute or
the Certificate of Incorporation, each stockholder of record entitled to vote
shall be entitled at every meeting of stockholders to one vote, either in person
or by proxy executed in writing by the stockholder or by the stockholder's duly
authorized attorney, for each share of such stock standing in his name on the
records of the Corporation. Elections of directors shall be determined by a
plurality of the votes cast and, except as otherwise provided by statute, the
Certificate of Incorporation, or these By-Laws, all other action shall be
determined by a majority of the votes cast at such meeting.
At all elections of directors, the voting shall be by ballot
or in such other manner as may be determined by the stockholders present in
person or by proxy entitled to vote at such election. With respect to any other
matter presented to the stockholders for their consideration at a meeting, any
stockholder entitled to vote may, on any question, demand a vote by ballot.
A complete list of the stockholders entitled to vote at each
such meeting, arranged in alphabetical order, with the address of each, and the
number of shares registered in the name of each stockholder, shall be prepared
by the Secretary and shall be open to the examination by any stockholder, for
any purpose germane to the meeting, during ordinary business hours, for a period
of at least ten days prior to the meeting, either at a place within the city
where the meeting is to be held, which place shall be specified in the notice of
the meeting, or, if not so specified, at the place where the meeting is to be
held. The list shall also be produced and kept at the time and place of the
meeting during the whole time thereof, and may be inspected by any stockholder
who is present.
Section 75. Inspectors of Election. The Board of Directors
prior to any meeting of stockholders shall appoint two Inspectors of Election to
act at the meeting or any adjournment thereof. In the event of the failure of
the Board of Directors to make such appointment or if any Inspector of Election
shall for any reason fail to attend and to act at such meeting, the chairman of
the meeting shall appoint one or more Inspectors of Election. Each Inspector of
Election, before entering upon the discharge of his duties, shall take and sign
an oath faithfully to execute the duties of Inspector of Election at such
meeting with strict impartiality and according to the best of his ability. If
appointed, Inspectors of Election shall take charge of the polls and, when the
vote is completed, shall make a certificate of the result of the vote taken and
of such other facts as may be required by law.
Section 76. Action by Consent. Any action required or
permitted to be taken at any meeting of stockholders may be taken without a
meeting, with or without prior notice and with or without a vote, only if, prior
to such action, a written consent or consents thereto, setting forth such
action, is signed by the holders of record of all of the shares of the stock of
the Corporation, issued and outstanding and entitled to vote thereon.
Section 77. Introduction of Business at a Meeting of
Stockholders.
78. Annual Meetings of Stockholders.
a) Nominations of persons for election to the Board of
Directors of the Corporation and the proposal of business to be
considered by the stockholders may be made at an annual meeting of the
stockholders (a) pursuant to the Corporation's notice of meeting, (b)
by or at the direction of the Board of Directors or (c) by any
stockholder of the Corporation who was a stockholder of record at the
time of giving notice provided for in this By-Law, who is entitled to
vote at the meeting and who complied with the notice procedures set
forth in this Section 9.
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b) For nominations or other business to be properly brought
before an annual meeting by a stockholder pursuant to clause (c) of
paragraph (A)(1) of this Section 9, the stockholder must have given
timely notice thereof in writing to the Secretary of the Corporation.
To be timely, a stockholder's notice shall be delivered to the
Secretary at the principal executive offices of the Corporation not
less than sixty (60) days nor more than ninety (90) days prior to the
first anniversary of the preceding year's annual meeting; provided,
however, that in the event that the date of the annual meeting is
advanced by more than thirty (30) days or delayed by more than sixty
(60) days from such anniversary date, notice by the stockholder to be
timely must be so delivered not earlier than the 90th day prior to such
annual meeting and not later than the close of business on the 60th day
prior to such annual meeting or the 10th day following the day on which
public announcement of the date of such meeting is first made. Such
stockholder's notice shall set forth (a) as to each person whom the
stockholder proposes to nominate for election or reelection as a
director, the name, age, principal occupations and employment during
the past five years, name and principal business of any corporation or
other organization in which such occupations and employment were
carried on, a brief description of any arrangement or understanding
between such person and any other person(s) (naming such person(s))
pursuant to which he was or is to be selected as a nominee, and the
written consent of such person(s) to serve as a director if elected;
(b) as to any other business that the stockholder proposes to bring
before the meeting, a brief description of the business desired to be
brought before the meeting, the reasons for conducting such business at
the meeting and any material interest in such business of such
stockholder and beneficial owner, if any, on whose behalf the proposal
is made; (c) as to the stockholder giving the notice and the beneficial
owner, if any, on whose behalf the nomination or proposal is made (i)
the name and address of such stockholder, as they appear on the
Corporation's books, of such beneficial owner and any other
stockholders believed by such stockholder to be supporting such
nominee(s) or other business and (ii) the class and number of shares of
the Corporation which are owned beneficially and of record by such
stockholder, such beneficial owner and any other stockholders believed
by such stockholder to be supporting such nominee(s) or other business.
c) Notwithstanding anything in the second sentence of
paragraph (A)(2) of this Section 9 to the contrary, in the event that
the number of directors to be elected to the Board of Directors of the
Corporation is increased and there is no public announcement naming all
of the nominees for Director or specifying the size of the increased
Board of Directors made by the Corporation at least seventy (70) days
prior to the first anniversary of the preceding year's annual meeting,
a stockholder's notice required by this Section 9 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 as 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.
1. Special Meetings of Stockholders. Only such business shall
be conducted at a special meeting of stockholders as shall have been brought
before the meeting pursuant to the Corporation's notice of meeting. Nominations
of persons for election to the Board of Directors may be made at a special
meeting of stockholders at which directors are to be elected pursuant to the
Corporation's notice of meeting (a) by or at the direction of the Board of
Directors or (b) provided that the Board of Directors has determined that
directors shall be elected at such special meeting, by any stockholder of the
Corporation who is a stockholder of record at the time of giving of notice
provided for in this Section 9, who shall be entitled to vote at the meeting and
who complies with the notice procedures set forth in this Section 9. In the
event the Corporation calls a special meeting of stockholders for the purpose
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of electing one or more directors, any such stockholder may nominate a person or
persons (as the case may be), for election to such position(s) as specified in
the Corporation's notice of meeting, if the stockholder's notice required by
paragraph (A)(2) of this Section 9 shall be delivered to the Secretary at the
principal executive offices of the Corporation not earlier than the 90th day
prior to such special meeting and 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 is first made of the date of the special
meeting and of the nominees proposed by the Board of Directors to be elected at
such meeting.
d) General. Only such persons who are nominated in accordance
with the procedures set forth in this Section 9 shall be eligible to
serve as directors and only such business shall be conducted at a
meeting of stockholders as shall have been brought before the meeting
in accordance with the procedures set forth in this Section 9. The
Chairman of the meeting shall have the power and duty to determine
whether a nomination or any business proposed to be brought before the
meeting was made in accordance with the procedures set forth in this
Section 9 and, if any proposed nomination or business is not in
compliance with this Section 9 of these By-Laws, to declare that such
defective proposal shall be disregarded.
e) For purposes of this Section 9, "public announcement" shall
mean disclosure in a press release reported by the Dow Jones News
Service, Associated Press or comparable national news service or in a
document publicly filed by the Corporation with the Securities and
Exchange Commission pursuant to Sections 13, 14 or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") or any
successor provisions.
f) Notwithstanding the foregoing provisions of this Section 9,
a stockholder shall also comply with all applicable requirements of the
Exchange Act and the rules and regulations thereunder with respect to
the matters set forth in this Section 9. Nothing in this Section 9
shall be deemed to affect any rights of stockholders to request
inclusion of a proposal in the Corporation's proxy statement pursuant
to Rule 14a-8 under the Exchange Act (or any similar provision).
Article
CAPITAL STOCK
Section 2. Certificates. The interest of each stockholder of
the Corporation shall be evidenced by certificates for shares of stock in such
form as the Board of Directors may from time to time prescribe. Certificates of
stock shall be numbered and registered in the order in which they are issued and
shall be signed by the Chairman of the Board, a Vice Chairman of the Board, the
Chief Executive Officer, the President or a Vice-President and by the Secretary
or Treasurer or by an Assistant Secretary or an Assistant Treasurer, and sealed
with the seal of the Corporation or a facsimile thereof. The signatures of the
officers upon a certificate may be facsimiles if: (i) the certificate is
countersigned by a transfer agent or registered by a registrar other than the
Corporation or its employee, or (ii) the shares are listed on a registered
national security exchange. In case any officer or officers who shall have
signed, or whose facsimile signature or signatures shall have been used on, any
such certificate because of death, resignation or otherwise, before such
certificate or certificates, shall have been delivered by the Corporation, such
certificate or certificates may nevertheless be adopted by the Corporation and
be issued and delivered as though the person or persons who signed such
certificate or certificates or whose facsimile signature or
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signatures shall have been used thereon had not ceased to be such officer or
officers of the Corporation.
Section 3. Transfer. The shares of stock of the Corporation
shall be transferred only upon the books of the Corporation by the holder
thereof in person or by his attorney, upon surrender for cancellation of
certificates for the same number of shares, with an assignment and power of
transfer endorsed thereon or attached thereto, duly executed, with such proof of
the authenticity of the signature as the Corporation or its agents may
reasonably require.
Section 4. Record Dates. Unless otherwise provided by statute
or by the Certificate of Incorporation, the Board of Directors may fix in
advance a date, not less than ten nor more than sixty days preceding the date of
any meeting of stockholders, or the date for the payment of any dividend, or the
date for the distribution or allotment of any rights, or the date when any
change, conversion or exchange of capital stock shall go into effect, as a
record date for the determination of the stockholders entitled to notice of, and
to vote at, any such meeting, or entitled to receive payment of any such
dividend, or to receive any distribution or allotment of such rights, or to
exercise the rights in respect of any such change, conversion or exchange of
capital stock, and in such case only such stockholders as shall be stockholders
of record on the date so fixed shall be entitled to such notice of, and to vote
at, such meeting, or to receive payment of such dividend, or to receive such
distribution or allotment or rights or to exercise such rights, as the case may
be, notwithstanding any transfer of any stock on the books of the Corporation
after any such record date fixed as aforesaid.
Section 5. Lost Certificates. In the event that any
certificate of stock is lost, stolen, destroyed or mutilated, the Board of
Directors may authorize the issuance of a new certificate of the same tenor and
for the same number of shares in lieu thereof. The Board of Directors may in its
discretion, before the issuance of such new certificate, require the owner of
the lost, stolen, destroyed or mutilated certificate, or the legal
representative of the owner to make an affidavit or affirmation setting forth
such facts as to the loss, destruction or mutilation as it deems necessary, and
to give the Corporation a bond in such reasonable sum as it directs to indemnify
the Corporation.
Article 6.
DIRECTORS
Section 7. Responsibilities. The business of the Corporation
shall be managed under the direction of the Board of Directors.
Section 8. Number and Term. The Board of Directors of the
Corporation shall consist of not less than three (3) nor more than twenty-one
(21) persons as determined by the Board of Directors from time to time. The
number of directors may be changed by a resolution passed by a majority of the
Whole Board or by a vote of the holders of record of at least a majority of the
shares of stock of the Corporation, issued and outstanding and entitled to vote.
No decrease in the Board shall shorten the term of any incumbent Director.
Section 9. Quorum. At any meetings of the Board of Directors,
regular or special, a majority of the members of the Board of Directors then
holding office (but not less than one-third of the total number of directors nor
less than two directors) shall constitute a quorum for the transaction of
business, but if at any meeting of the Board there shall be less than a quorum
present, a majority of those present may adjourn the meeting from time to time
until a quorum shall have been obtained.
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Section 10. Vacancies. Whenever any vacancy shall have
occurred in the Board of Directors, by reason of death, resignation, or
otherwise, other than removal of a director with or without cause by a vote of
the stockholders, it shall be filled by a majority vote of the remaining
directors, though less than a quorum (except as otherwise provided by law), and
the person so chosen shall hold office until the next annual election and until
his or her successor is duly elected and has qualified.
Section 11. Nomination of Directors. The Board of Directors,
in recommending nominees for election by the stockholders to the Board of
Directors and in electing members to fill vacancies occurring in the Board of
Directors, will not nominate an individual for election at an annual meeting
who, prior to such annual meeting, will attain age 70, and to fill a vacancy
will not elect an individual who has attained age 70; provided, however, that
the provisions of this Section 5 may be waived with respect to any nominee by a
majority of the Directors, excluding such nominee, if such nominee is then a
Director.
Section 12. Meetings. Meetings of the Board of Directors shall
be held at such place either within or without the State of Delaware, as may
from time to time be fixed by resolution of the Board, or as may be specified is
the call or in a waiver of notice thereof. Regular meetings of the Board of
Directors shall be held at such times as may from time to time be fixed by
resolution of the Board, except that a regular meeting of the Board of Directors
shall be held following the adjournment of and on the same date as the annual
meeting of stockholders and at such meeting the Board may elect or appoint
officers of the Corporation. Special meetings of the Board of Directors may be
called by the Chairman of the Board, a Vice Chairman of the Board, the Chief
Executive Officer or the President. The Secretary shall call Special Meetings of
the Board of Directors when requested in writing so to do by any three members
thereof.
Any one or more members of the Board of Directors or any
Committee of the Board of Directors may participate in a meeting of the Board of
Directors or such Committee by means of a conference telephone or similar
communications equipment allowing all persons participating in the meeting to
hear each other at the same time. Participation by such means shall constitute
presence in person at a meeting.
Section 13. Notice. Notice of any special meeting of the Board
of Directors may be served not less than two days before the date and time fixed
for such meeting, by oral, written or electronic communication stating the time,
place and purpose thereof or if by mail not less than three days before the date
fixed for such meeting. Any oral notice may be given to each member of the Board
of Directors at his or her office or his or address as it appears on the books
of the Corporation, whether or not the director is present personally to receive
it. Any written or electronic notice shall be addressed to each member of the
Board of Directors at his or her office or his or her address as it appears on
the books of the Corporation. A meeting of the Board may be held without notice
immediately after the annual meeting of stockholders at the same place at which
such meeting was held. Notice need not be given of regular meetings of the
Board. Any meeting may be held without notice, if all directors are present, or
if notice is waived in writing, either before or after the meeting, by those not
present.
Section 14. Committees. The Board of Directors may, in its
discretion, by resolution passed by a majority of the Whole Board, designate
from among its members one or more committees which shall consist of two or more
directors. The Board may designate one or more directors as alternate members of
any such committee, who may replace any absent or disqualified member at any
meeting of the committee. Such committees shall exercise such powers and duties
as shall be
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conferred or authorized by the resolution appointing them or as the Board from
time to time may prescribe. A majority of any such committee may determine its
action and fix the time and place of its meetings, unless the Board of Directors
shall otherwise provide. The Board shall have power at any time to change the
membership of any such committee, to fill vacancies in it, or to dissolve it.
Section 15. Action by Consent. 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 a written consent or
consents thereto is signed by all members of the Board, or of such committee as
the case may be, and such written consent or consents is filed with the minutes
of proceedings of the Board or committee.
Section 16. Compensation. The Board of Directors may
determine, from time to time, the amount of compensation which shall be paid to
its members. The Board of Directors shall also have power, in its discretion, to
allow a fixed sum and expenses for attendance at each regular or special meeting
of the Board, or of any committee of the Board; in addition the Board of
Directors shall also have power, in its discretion, to provide for and pay to
directors rendering services to the Corporation not ordinarily rendered by
directors, as such, special compensation appropriate to the value of such
services, as determined by the Board from time to time.
Section 17. Removal. Any one or more of the directors of the
Corporation may be removed at any time, with or without cause, by a vote of the
holders of record of at least a majority of the shares of stock of the
Corporation, issued and outstanding and entitled to vote. The term of the
director or directors who shall have been so removed, shall thereupon terminate
and there shall be a vacancy or vacancies in the Board of Directors, to be
filled as provided in these By-Laws.
Section 18. Traveling Expenses. A Director attending any
meeting of the Board of Directors shall be allowed any proper expenses incurred
in attending such meeting.
Article 19.
OFFICERS
Section 20. Titles and Election. The Board of Directors may
elect from its number a Chairman of the Board and one or more Vice Chairmen of
the Board and shall elect a President and may elect one or more Vice-Presidents,
a Secretary, a Treasurer, and a Controller, and may appoint such other officers
as it may deem appropriate. All officers shall serve during the pleasure of the
Board. The Board of Directors may create such other offices as it may determine
and appoint officers to fill such offices, fill vacancies in any office,
delegate to one or more officers any of the duties of any officer or officers,
and prescribe the duties of any officers. Any number of offices may be held by
the same person.
Section 21. Terms of Office. The officer shall hold office
until their successors are chosen and qualify.
Section 22. Removal. Any officer may be removed, either with
or without cause, at any time, by the affirmative vote of a majority of the
Board of Directors.
Section 23. Resignations. Any officer may resign at any time
by giving written notice to the Board of Directors or to the Secretary. Such
resignation shall
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take effect at the time specified therein, and, unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to make it
effective.
Section 24. Vacancies. If the office of any officer or agent
becomes vacant by reason of death, resignation, retirement, disqualification,
removal from office or otherwise, the directors may choose a successor, who
shall hold office for the unexpired term in respect of which such vacancy
occurred.
Section 25. Chairman of the Board. The Chairman of the Board,
if there be one, shall preside at all meetings of stockholders, of the Board of
Directors and shall have such other authority and perform such other duties as
are prescribed by these By-Laws and by the Board of Directors.
Section 26. Vice Chairman of the Board. Each Vice Chairman of
the Board, if he or she is not the Chief Executive Officer, shall have such
authority and perform such duties as may be prescribed by these By-Laws and the
Chief Executive Officer. A Vice Chairman of the Board, if he or she is the Chief
Executive Officer, shall have such authority and perform such duties as are
prescribed by these By-Laws and by the Board of Directors. The Vice Chairman of
the Board (or, if there be more than one, the Vice Chairman of the Board in the
order designated by the Board of Directors), in the absence or disability of the
Chairman of the Board and the President, shall preside at all meetings of the
stockholders, of the Board of Directors and, unless there is a different
Chairman of the Executive Committee, of the Executive Committee.
Section 27. President. The President, if he or she is not the
Chief Executive Officer, shall have such authority and perform such duties as
may be prescribed by these By-Laws and the Chief Executive Officer. The
President, if he or she is the Chief Executive Officer, shall have such
authority and perform such duties as are prescribed by these By-Laws and by the
Board of Directors. The President, in the absence or disability of the Chairman
of the Board or any Vice Chairman, shall preside at all meetings of the
stockholders and of the Board of Directors.
Section 28. Chief Executive Officer. The Board of Directors
shall designate the Chairman of the Board, a Vice Chairman of the Board, or the
President as Chief Executive Officer. Such Chief Executive Officer shall have
the general management and control of the affairs and business of the
Corporation, subject to the Board of Directors. Subject to action by the Board
of Directors, he or she may appoint and discharge agents and employees and fix
their compensation; and he or she shall see that all orders and resolutions of
the Board of Directors are carried into effect. He or she shall have the power
to execute bonds, mortgages and other contracts, agreements and instruments of
the Corporation, and shall do and perform such other duties as are incident to
his or her office or as from time to time may be assigned to him by the Board of
Directors or which are or may at any time be authorized or required by law.
In the absence or disability of the officer designated as
Chief Executive Officer, one of the other aforementioned officers (Chairman of
the Board, Vice Chairman of the Board, or President), as determined by the Board
of Directors, shall perform any and all of the duties of the Chief Executive
Officer. Subject to limitations or procedures established by the Board of
Directors, the Chief Executive Officer may delegate from time to time his or her
authority to act.
Section 29. Vice-President. Each Vice-President shall have the
powers and duties incident to that office and shall have such other powers and
duties as are prescribed by the By-Laws and from time to time by the Chief
Executive Officer.
Section 30. Secretary. The Secretary shall be ex-officio
Secretary of the Board of Directors and, unless otherwise determined by the
Committees, of all
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standing Committees. He or she shall keep the minutes of all meetings of the
stockholders, the Board of Directors and of all standing Committees and attend
to serving and giving all notices of the Corporation. He or shall have the
charge of the corporate seal, the stock certificate books and such other books,
records, and papers as the Board of Directors may direct, cause to be kept a
stock record containing the names alphabetically arranged of all persons who are
stockholders of the Corporation, showing their place of residence, the number of
shares of stock held by them respectively, the time when they respectively
became owners thereof, and the amount paid thereon and shall perform such other
duties as may be incident to his or her office.
Section 31. Treasurer. The Treasurer shall keep or cause to be
kept full and accurate accounts of all receipts and disbursements in books
belonging to the Corporation, and shall have the care and custody of all funds
and securities of the Corporation and deposit such funds in the name of the
Corporation in such bank or banks as the Board of Directors or the Chief
Executive Officer may authorize. He or she shall disburse the funds of the
Corporation as may be ordered by the Board of Directors or the Chief Executive
Officer, taking proper vouchers for such disbursements, and shall render to the
Board of Directors an account of all of his or her transactions as Treasurer and
of the financial condition of the Corporation as such is required from time to
time; and he or she shall perform such other duties as are prescribed by these
By-Laws and as are incident to his or her office.
Section 32. Duties of Officers may be Delegated. In case of
the absence or disability of any officer of the Corporation, or for any other
reason that the Board may deem sufficient, the Board may delegate, for the time
being, the powers or duties, or any of them, of such officer to any other
officer, or to any director.
Article 33.
INDEMNIFICATION
Section 34. Actions by Others. The Corporation (1) 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 a director
or an officer of the Corporation and (2) except as otherwise required by Section
3 of this Article V, may 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 an employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee,
agent of or participant in 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 him in connection with such action, suit or proceeding 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. 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 35. Actions 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
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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 or she is or was a director or officer of the Corporation, and the
Corporation may 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 or she is or was an employee or agent of the Corporation or is or
was serving at the request of the Corporation as a director, officer, employee,
agent of or participant in another corporation, partnership, joint venture,
trust or other enterprise against expenses (including attorneys' fees) actually
and reasonably incurred by him or her in connection with the defense or
settlement of such action or suit if he or she acted in good faith and in a
manner he or she 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 or
her duty to the Corporation unless and only to the extent that the Delaware
Court of Chancery 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 Delaware Court of Chancery or
such other court shall deem proper.
Section 36. Successful Defense. To the extent that a person
who is or was a director, officer, employee or agent of the Corporation has been
successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in Section 1 or Section 2 of this Article, or in defense
of any claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
Section 37. Right to Indemnification. The right to
indemnification conferred in this Article V shall be a contract right and shall
include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition, such expenses
to be paid by the Corporation within 20 days after the receipt by the
Corporation of a statement or statements from the claimant requesting such
payment or payments of expenses from time to time; provided, however, that if
the General Corporation Law of the State of Delaware requires, the payment of
such expenses incurred by a director or officer in his or her 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, including, without
limitation, service to an employee benefit plan) in advance of the final
disposition of a proceeding, shall be made only upon delivery to the Corporation
of an undertaking by or on behalf of such director or officer, to repay all
amounts so advanced if it shall ultimately be determined that such director or
officer is not entitled to be indemnified under this Article V or otherwise.
Section 38. Specific Authorization. To obtain indemnification
under this Article V, a claimant shall submit to the Corporation a written
request, including therein or therewith such documentation and information as is
reasonably available to the claimant and is reasonably necessary to determine
whether and to what extent the claimant is entitled to indemnification. Any
indemnification under Section 1 or Section 2 of this Article V (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 director, officer,
employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in said Sections 1 and 2. Such
determination shall be made by (a) the stockholders, (b) the Board of Directors
by a majority vote of a quorum consisting of Disinterested Directors, or (c) (1)
even if such quorum is not obtainable, if a quorum of Disinterested Directors so
directs or (2) if a Change of Control shall have occurred, by an Independent
Counsel in a written opinion, which Independent Counsel
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shall be selected by a majority vote of a quorum of Disinterested Directors or,
if a Change of Control shall have occurred, by the claimant. If it is so
determined that the claimant is entitled to indemnification, payment to the
claimant shall be made within 10 days after such determination.
Section 39. Suit Against Corporation. If a claim under Section
1 or 2 of this Article V is not paid in full by the Corporation within 30 days
after a written claim pursuant to Section 5 of this Article V has been received
by the Corporation, the claimant may at any time thereafter bring suit against
the Corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled to be paid also the expense of
prosecuting such claim. It shall be a defense to any such action (other than an
action brought to enforce a claim for expenses incurred in defending any
proceeding in advance of its final disposition where the required undertaking,
if any is required, has been tendered to the Corporation) that the claimant has
not met the standard of conduct which makes it permissible under the General
Corporation Law of the State of Delaware or this Article V for the Corporation
to indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors, Independent Counsel or stockholders) to have
made a determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances because he or she
has met the applicable standard of conduct set forth in the General Corporation
Law of the State of Delaware or this Article V, nor an actual determination by
the Corporation (including its Board of Directors, Independent Counsel or
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 40. Corporation Bound. If a determination shall have
been made pursuant to Section 5 of this Article V that the claimant is entitled
to indemnification, the Corporation shall be bound by such determination in any
judicial proceeding commenced pursuant to Section 6 of this Article V.
Section 41. Preclusion. The Corporation shall be precluded
from asserting in any judicial proceeding commenced pursuant to Section 6 of
this Article V that the procedures and presumptions of this Article V are not
valid, binding and enforceable and shall stipulate in such proceeding that the
Corporation is bound by all the provisions of this Article V.
Section 42. Right of Indemnity not Exclusive. The
indemnification and advancement of expenses provided by this Article shall not
be deemed exclusive of any other rights to which those seeking indemnification
may be entitled under any by-law, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his official capacity
and as to action in another capacity while holding such office, 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 heirs, executors and administrators
of such a person.
Section 43. Insurance. The Corporation may purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of or participant in
another corporation, partnership, joint venture, trust or other enterprise
against any liability asserted against him and incurred by him 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, Section 145 of the General Corporation Law of the
State of Delaware or otherwise.
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Section 44. Invalidity of any Provisions of this Article. The
invalidity or unenforceability of any provision of this Article V shall not
affect the validity or enforceability of the remaining provisions of this
Article V, and, to the fullest extent possible, such provisions of this Article
V (including, without limitation, each such portion of any Section of this
Article V containing any such provision held to be invalid, illegal or
unenforceable) shall be construed so as to give effect to the intent manifested
by the provision held invalid, illegal or unenforceable.
Section 45. Definitions. For purposes of this Article V:
(A) "Change of Control" means:
(1) the acquisition by any individual, entity or
group (within the meaning of Section 13(d)(3) or 14(d)(2) of the
Exchange Act) (a "Person") of beneficial ownership (within the meaning
of Rule 13d-3 promulgated under the Exchange Act) of voting securities
of the Corporation where such acquisition causes such Person to own 20%
or more of the combined voting power of the then outstanding voting
securities of the Corporation entitled to vote generally in the
election of directors (the "Outstanding Corporation Voting
Securities"); provided, however, that for purposes of this paragraph
(1), the following acquisitions shall not be deemed to result in a
Change of Control: (i) any acquisition directly from the Corporation,
(ii) any acquisition by the Corporation, (iii) any acquisition by any
employee benefit plan (or related trust) sponsored or maintained by the
Corporation or any corporation controlled by the Corporation or (iv)
any acquisition by any corporation pursuant to a transaction that
complies with clauses (i), (ii) and (iii) of paragraph (3) below;
provided, further, that if any Person's beneficial ownership of the
Outstanding Corporation Voting Securities reaches or exceeds 20% as a
result of a transaction described in clause (i) or (ii) above, and such
Person subsequently acquires beneficial ownership of additional voting
securities of the Corporation, such subsequent acquisition shall be
treated as an acquisition that causes such Person to own 20% or more of
the Outstanding Corporation Voting Securities; and provided, further,
that if at least a majority of the members of the Incumbent Board (as
defined below) determines in good faith that a Person has acquired
beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of 20% or more of the Outstanding Corporation
Voting Securities inadvertently, and such Person divests as promptly as
practicable a sufficient number of shares so that such Person
beneficially owns (within the meaning of Rule 13d-3 promulgated under
the Exchange Act) less than 20% of the Outstanding Corporation Voting
Securities, then no Change of Control shall have occurred as a result
of such Person's acquisition; or
(2) individuals who, as of August 1, 1996, constitute
the Board of Directors (the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board of Directors; provided,
however, that any individual becoming a director subsequent to August
1, 1996, whose election, or nomination for election by the
Corporation's stockholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board shall be
considered a member of the Incumbent Board, except that, for this
purpose, any such individual whose initial assumption of office occurs
as a result of an actual or threatened election contest with respect to
the election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other
than the Board of Directors shall not be considered a member of the
Incumbent Board; or
(3) the consummation of a reorganization, merger or
consolidation or sale or other disposition of all or substantially all
of the assets of the
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Corporation or the acquisition of assets of another corporation
("Business Combination"); excluding, however, such a Business
Combination pursuant to which (i) all or substantially all of the
individuals and entities who were the beneficial owners of the
Outstanding Corporation Voting Securities immediately prior to such
Business Combination beneficially own, directly or indirectly, more
than 60% of, respectively, the then outstanding shares of common stock
and the combined voting power of the then outstanding voting securities
entitled to vote generally in the election of directors, as the case
may be, of the corporation resulting from such Business Combination
(including, without limitation, a corporation that as a result of such
transaction owns the Corporation or all or substantially all of the
Corporation's assets either directly or through one or more
subsidiaries) in substantially the same proportions as their ownership,
immediately prior to such Business Combination of the Outstanding
Corporation Voting Securities, (ii) no Person (excluding any employee
benefit plan (or related trust) of the Corporation or such corporation
resulting from such Business Combination) beneficially owns, directly
or indirectly, 20% or more of, respectively, the then outstanding
shares of common stock of the corporation resulting from such Business
Combination or the combined voting power of the then outstanding voting
securities of such corporation except to the extent that such ownership
existed prior to the Business Combination and (iii) at least a majority
of the members of the board of directors of the corporation resulting
from such Business Combination were members of the Incumbent Board at
the time of the execution of the initial agreement, or of the action of
the Board of Directors, providing for such Business Combination; or
(4) approval by the stockholders of the Corporation of a
complete liquidation or dissolution of the Corporation.
(B) "Disinterested Director" means a director of the
Corporation who is not and was not a party to the matter in respect of which
indemnification is sought by the claimant.
(C) "Independent Counsel" means a law firm, a member of a law
firm, or an independent practitioner, that is experienced in matters of
corporation law and shall include any person who, under the applicable standards
of professional conduct then prevailing, would not have a conflict of interest
in representing either the Corporation or the claimant in an action to determine
the claimant's rights under this Article V.
Section 46. Notice. Any notice, request or other communication
required or permitted to be given to the Corporation under this Article V shall
be in writing and either delivered in person or sent by telecopy, telex,
telegram, overnight mail or courier service, or certified or registered mail,
postage prepaid, return receipt requested, to the Secretary of the Corporation
and shall be effective only upon receipt by the Secretary.
Article 47.
WAIVER OF NOTICE
Section 48. Waiver of Notice. Whenever under the provisions of
these By-Laws or of the General Corporation Law of the State of Delaware, the
Board of Directors or any Committee is authorized to take any action after
notice or after lapse of a prescribed period of time, such action may be taken
without notice and without the lapse of any period of time, if such action be
authorized or approved and the requirements waived by each member entitled to
notice. Such authorized or approval and such waiver shall be filed with the
Secretary of the Corporation.
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Article 49.
CHECKS, NOTES, ETC.
Section 50. Checks, Notes, Etc. Subject to limitations or
procedures established by the Board of Directors, all checks and drafts on the
Corporation's bank accounts and all bills of exchange and promissory notes, and
all acceptances, obligations and other instruments for the payment of money, may
be signed by the Chief Executive Officer or the Treasurer and may also be signed
by such other officer or officers, agent or agents, in the manner authorized
from time to time by the Board of Directors.
Article 51.
MISCELLANEOUS PROVISIONS
Section 52. Offices. The registered office of the Corporation
shall be located at the office of United States Corporation Company, in the City
of Dover, County of Kent, in the State of Delaware and said Company shall be the
registered agent of this Corporation in charge thereof. The Corporation may have
other offices either within or without the State of Delaware at such places as
shall be determined from time to time by the Board of Directors or as the
business of the Corporation may require.
Section 53. Fiscal Year. The fiscal year of the Corporation
shall be determined by the Board of Directors.
Section 54. Corporate Seal. The seal of the Corporation shall
be circular in form and contain the name of the Corporation, and the year and
state of its incorporation. Such seal may be altered from time to time at the
discretion of the Board of Directors.
Section 55. Books. There shall be kept at such office of the
Corporation as the Board of Directors shall determine, within or without the
State of Delaware, correct books and records of account of all its business and
transactions, minutes of the proceedings of its stockholders, Board of Directors
and committees, and the stock book, containing the names and addresses of the
stockholders, the number of shares of stock held by them, respectively, and the
dates when they respectively became the owners of record thereof, and in which
the transfer of stock shall be registered, and such other books and records as
the Board of Directors may from time to time determine.
Section 56. Voting of Stock. Unless otherwise specifically
authorized by the Board of Directors, all stock owned by the Corporation, other
than stock of the Corporation, shall be voted, in person or by proxy, by any
officer of the Corporation on behalf of the Corporation.
Article 57.
AMENDMENTS
Section 58. Amendments. The vote of the holders of at least a
majority of the shares of stock of the Corporation, issued and outstanding and
entitled to vote, shall be necessary at any meeting of stockholders to amend or
repeal these By-Laws or to adopt new by-laws. These By-Laws may also be amended
or repealed, or new by-laws adopted, at any meeting of the Board of Directors by
the vote of at least a
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majority of the Whole Board; provided that any by-law adopted by the Board may
be amended or repealed by the stockholders in the manner set forth above.
Any proposal to amend or repeal these By-Laws or to adopt new
by-laws shall be stated in the notice of the meeting of the Board of Directors
or the stockholders, or in the waiver of notice thereof, as the case may be,
unless all of the directors or the holders of record of all of the shares of
stock of the Corporation, issued and outstanding and entitled to vote, are
present at such meeting.
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