EXHIBIT 3.2
NCR CORPORATION
BYLAWS
AS AMENDED AND RESTATED ON JUNE 25, 2001
ARTICLE I.
Stockholders
Section 1. The Corporation shall hold annually a regular
meeting of its stockholders for the election of the Directors and for the
transaction of general business at such place within the United States as the
Board of Directors shall determine and shall cause to be stated in the notice of
such meeting, on any business day during the 31-day period beginning on the
third Thursday of April of each year. Such annual meetings shall be general
meetings, that is to say, open for the transaction of any business within the
powers of the Corporation without special notice unless otherwise required by
statute, by the Charter (which term, as used in these Bylaws, shall include all
amendments to the Charter and all Articles Supplementary) or by these Bylaws.
Failure to hold an annual meeting at the designated time shall not, however,
invalidate the corporate existence or affect otherwise valid corporate acts.
Section 2. At any time in the interval between annual
meetings, special meetings of the stockholders may be called as provided in the
Charter, by the Chief Executive Officer, a President, by the Board of Directors
or by the holders of a majority of the then outstanding shares of common stock
of the Corporation. All such meetings shall be held within the United States. No
business other than that stated in the notice of the special meetings shall be
transacted at such special meeting.
Section 3. Written or printed notice of every annual or
special meeting of the stockholders shall be given to each stockholder entitled
to vote at such meeting, by leaving the same with him or at his residence or
usual place of business, by mailing it to him at his address as it appears upon
the books of the Corporation, or by transmitting it to him by electronic mail or
any other electronic means or as otherwise permitted by law, at least ten days
and not more than ninety days before such meeting. Notice of every special
meeting shall state the place, day and hour of such meeting and the business
proposed to be transacted thereat; and no business shall be transacted at such
meeting except that specifically named in the notice. Failure to give notice of
any annual meeting, or any irregularity in such notice, shall not affect the
validity of any annual meeting if held at the time and place fixed by Section 1
of this Article I, or the validity of any proceedings at any such meeting (other
than proceedings of which special notice is required by statute, by the Charter
or by these Bylaws). No notice of an adjourned or postponed meeting of
stockholders need be given, except as required by law.
Section 4. The Chairman of any special or annual meeting of
stockholders may adjourn or postpone the meeting from time to time, whether or
not a quorum is present. No notice of the time and place of adjourned or
postponed meetings need be given except as required by law. The stockholders
present at a duly called meeting at which a quorum is present may continue to
transact business until adjournment or postponement, notwithstanding the
withdrawal of enough stockholders to leave less than a quorum. At any such
adjourned or postponed meeting at which a quorum shall be present, any business
may be transacted which might have been transacted at the meeting as originally
notified. Except as required by statute, or as provided in the Charter or in
these Bylaws, a majority of all votes cast at a duly called special or annual
meeting of stockholders at which a quorum is present shall be sufficient to
approve any matter which properly comes before the meeting, including the
election of Directors.
Section 5. Any stockholder entitled to vote at any meeting of
stockholders may vote either in person or by proxy, but no proxy which is dated
more than eleven months before the meeting at which it is offered shall be
accepted, unless such proxy shall, on its face, name a longer or shorter period
for which it is to remain in force. A stockholder may authorize another person
or persons to act as his proxy to the extent permitted by law.
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Section 6. At any meeting of the stockholders, the polls shall
be opened and closed, the proxies and ballots shall be received, and all
questions touching the qualification of voters and the validity of proxies and
the acceptance or rejection of votes shall be decided, by the Chairman of the
Meeting.
Section 7. At each meeting of the stockholders, a full, true
and complete list in alphabetical order, or in alphabetical order by classes or
series of stock, of all stockholders entitled to vote at such meeting,
indicating the number and classes or series of shares held by each, shall be
furnished by the Secretary.
Section 8. (a) Annual Meetings of Stockholders.
(1) 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 stockholders (a)
pursuant to the Corporation's notice of meeting pursuant to these
Bylaws, (b) by or at the direction of the Board of Directors, or (c) by
any stockholder of the Corporation who was a stockholder of record at
the time of giving of notice provided for in this Bylaw, who is
entitled to vote at the meeting and who complies with the notice
procedures set forth in this Bylaw.
(2) 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 Bylaw, the stockholder must have given timely notice
thereof in writing to the Secretary of the Corporation and such other
business must otherwise be a proper matter for stockholder action. To
be timely, a stockholder's notice shall be delivered to the Secretary
at the principal executive offices of the Corporation not later than
the close of business on the 90th calendar day nor earlier than the
close of business on the 120th calendar day 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 more than
thirty calendar days before or more than sixty calendar days after such
anniversary date, notice by the stockholder to be timely must be so
delivered not earlier than the close of business on the 120th calendar
day prior to such annual meeting and not later than the close of
business on the later of the 90th calendar day prior to such annual
meeting or the 10th calendar day following the calendar day on which
public announcement of the date of such meeting is first made by the
Corporation. For purposes of determining whether a stockholder's notice
shall have been delivered in a timely manner for the annual meeting of
stockholders in 1997, the first anniversary of the previous year's
meeting shall be deemed to be April 16, 1997. In no event shall the
public announcement of an adjournment or postponement of an annual
meeting commence a new time period for the giving of a stockholder's
notice as described above. Such stockholder's notice shall set forth
(a) as to each person whom the stockholder proposes to nominate for
election or reelection as a Director all information relating to such
person that is required to be disclosed in solicitations of proxies for
election of Directors in an election contest, or is otherwise required,
in each case pursuant to Regulation 14A under the Securities Exchange
Act of 1934, as amended (the "Exchange Act") and Rule 14a-11 thereunder
(including such person's written consent to being named in the proxy
statement as a nominee and to serving as a Director if elected); (b) as
to any other business that the stockholder proposes to bring before the
meeting, a brief description of the business desired to be brought
before the meeting, the reasons for conducting such business at the
meeting and any material interest in such business of such stockholder
and the beneficial owner, if any, on whose behalf the proposal is made;
and (c) as to the stockholder giving the notice and the beneficial
owner, if any, on whose behalf the nomination or proposal is made (i)
the name and address of such stockholder, as they appear on the
Corporation's books, and of such beneficial owner and (ii) the class
and number of shares of the Corporation which are owned beneficially
and of record by such stockholder and such beneficial owner.
(3) Notwithstanding anything in the second sentence of paragraph (a)(2)
of this Bylaw to the contrary, in the event that the number of
Directors to be elected to the Board of Directors of the Corporation is
increased and there is no public announcement by the Corporation naming
all of the nominees for Director or specifying the size of the
increased Board of Directors at least 100 calendar days prior to the
first anniversary of the preceding year's annual meeting, a
stockholder's notice required by this Bylaw shall also be considered
timely, but only with respect to nominees for any new positions created
by such increase, if it shall be delivered to the Secretary at the
principal executive offices of the Corporation not later than the close
of business on the 10th calendar day following the day on which such
public announcement is first made by the Corporation.
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(b) 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 Section 2 of Article I of these
Bylaws. 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, (b) provided that the Board
of Directors has determined that Directors shall be elected at such
meeting, by any stockholder of the Corporation who is a stockholder of
record at the time of giving of notice provided for in this Bylaw, who
shall be entitled to vote at the meeting and who complies with the
notice procedures set forth in this Bylaw. In the event the Corporation
calls a special meeting of stockholders for the purpose of electing one
or more Directors to the Board of Directors, any 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
pursuant to such clause (b), if the stockholder complies with the
notice procedures set forth in paragraph (a)(2) of this Bylaw and if
the stockholder's notice required by paragraph (a)(2) of this Bylaw
shall be delivered to the Secretary at the principal executive offices
of the Corporation not earlier than the close of business on the 120th
calendar day prior to such special meeting and not later than the close
of business on the later of the 90th calendar day prior to such special
meeting or the 10th calendar 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. In no event shall the public announcement of an adjournment or
postponement of a special meeting commence a new time period for the
giving of a stockholder's notice as described above.
(c) General.
(1) Only such persons who are nominated in accordance with the
procedures set forth in this Bylaw 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 Bylaw. Except as
otherwise provided by law, the Charter or these Bylaws, 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 or proposed, as the case may be, in accordance with the
procedures set forth in this Bylaw and, if any proposed nomination or
business is not in compliance with this Bylaw, to declare that such
defective proposal or nomination shall be disregarded.
(2) For purposes of this Bylaw, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service or in a document
publicly filed by the Corporation with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this Bylaw, a
stockholder shall also comply with all applicable requirements of state
law and of the Exchange Act and the rules and regulations thereunder
with respect to the matters set forth in this Bylaw. Nothing in this
Bylaw shall be deemed to affect any rights (a) of stockholders to
request inclusion of proposals in the Corporation's proxy statement
pursuant to Rule 14a-8 under the Exchange Act, (b) of the holders of
any series of Preferred Stock to elect Directors under an applicable
Articles Supplementary (as defined in the Corporation's Charter), or
(c) of the Corporation to omit proposals pursuant to Rule 14a-8 under
the Exchange Act.
Section 9. No matter shall be considered at any meeting of the
stockholders except upon a motion duly made and seconded. Any motion or second
of a motion shall be made only by a natural person present at the meeting who
either is a stockholder of the Company or is acting on behalf of a stockholder
of the Company, provided, that if the person is acting on behalf of a
stockholder, he or she must present a written statement executed by the
stockholder or the duly authorized attorney of the stockholder on whose behalf
he or she purports to act.
Section 10. At each meeting of the stockholders, the order of
business and the procedures to be followed in conducting such business shall be
determined by the presiding officer at the meeting in accordance with the law,
the Charter and these Bylaws. The presiding officer at each meeting shall be
appointed by the Board of Directors prior to the meeting.
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Section 11. The acquisition of shares of common stock of the
Corporation by any existing or future stockholders or their affiliates or
associates shall be exempt from all of the provisions of Subtitle 7 (entitled
"Voting Rights of Certain Control Shares") of title 3 of the Maryland General
Corporation Law, as amended.
ARTICLE II.
Board of Directors
Section 1. Subject to the restrictions contained in the
Charter and these Bylaws, the business and property of the Corporation shall be
managed under the direction of its Board of Directors, which may exercise all
the powers of the Corporation except such as by statute, by the Charter, or by
these Bylaws, are conferred upon or reserved to the stockholders. The Board of
Directors shall have the power to fix the compensation of its members and shall
provide for the payment of the expenses of Directors in attending meetings of
the Board of Directors and of any committee of the Board of Directors.
Section 2. Subject to removal, death, resignation or
retirement of a Director, a Director shall hold office until the annual meeting
of the stockholders for the year in which such Director's term expires and until
a successor shall be elected and qualified, or a successor appointed as provided
in Section 7.1(d) of the Charter.
Section 3. (a) From time to time, the number of Directors may
be increased to not more than 20, or decreased to not less than 3, upon
resolution approved by a majority of the total number of Directors which the
Corporation would have if there were no vacancies (the "Whole Board"). The
Directors, other than those who may be elected in accordance with the terms of
any Articles Supplementary, shall be divided into three classes. Each such class
shall consist, as nearly as may be possible, of one-third of the total number of
Directors, and any remaining Directors shall be included with such group or
groups as the Board of Directors shall designate. At the annual meeting of the
stockholders of the Corporation for 1996, a class of Directors shall be elected
for a one-year term, a class of Directors shall be elected for a two-year term,
and a class of Directors shall be elected for a three-year term. At each
succeeding annual meeting of stockholders, beginning with 1997, successors to
the class of Directors whose term expires at that annual meeting shall be
elected for a three-year term. If the number of Directors is changed, any
increase or decrease shall be apportioned among the classes so as to maintain
the number of Directors in each class as nearly equal as possible, but in no
case shall a decrease in the number of Directors shorten the term of any
incumbent Director.
(b) Except as provided by law with respect to Directors
elected by stockholders of a class or series, any Director or the entire Board
of Directors may be removed for cause by the affirmative vote of the holders of
not less than 80% of the voting power of all Voting Stock (as defined in the
Charter) then outstanding, voting together as a single class. Subject to such
removal, or the death, resignation or retirement of a Director, a Director shall
hold office until the annual meeting of the stockholders for the year in which
such Director's term expires and until a successor shall be elected and
qualified, except as provided in Section 7.1(d) of the Charter.
(c) Except as provided by law with respect to Directors
elected by stockholders of a class or series, a vacancy on the Board of
Directors which results from the removal of a Director may be filled by the
affirmative vote of the holders of not less than 80% of the voting power of the
then outstanding Voting Stock, voting together as a single class, and a vacancy
which results from any such removal or from any other cause may be filled by a
majority of the remaining Directors, whether or not sufficient to constitute a
quorum. Any Director so elected by the Board of Directors shall hold office
until the next annual meeting of stockholders and until his successor is elected
and qualified and any Director so elected by the stockholders shall hold office
for the remainder of the term of the removed Director. No decrease in the number
of Directors constituting the Board of Directors shall shorten the term of any
incumbent Director.
Section 4. The Board of Directors shall meet for the election
of officers and for the transaction of any other business as soon as practicable
after the annual meeting of stockholders. Other regular meetings of the Board of
Directors shall be held at such times and from time to time as may be fixed by
the Board of Directors or the Chairman, and on not less than 48 hours' notice,
given in such manner as the Board of Directors or the Chairman may determine.
Special meetings of the Board of Directors shall be held at such times and from
time to time pursuant to call of the Chairman of the Board or of the Chief
Executive Officer, if the Chief Executive Officer is also a Director, with
notice thereof given in writing
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or by telephonic or other means of communication in such manner as the Chairman
of the Board or the Chief Executive Officer , as the case may be, may determine.
Section 5. Regular and special meetings of the Board of
Directors may be held at such place or places within or without the State of
Maryland as the Board of Directors may from time to time determine.
Section 6. A majority of the Board of Directors shall
constitute a quorum for the transaction of business, but if, at any meeting of
the Board of Directors, there shall be less than a quorum present, the Directors
present at the meeting, without further notice, may adjourn the same from time
to time, not exceeding ten days at any one time, until a quorum shall attend.
Except as required by statute, or as provided in the Charter or these Bylaws, a
majority of the Directors present at any meeting at which a quorum is present
shall decide any questions that may come before the meeting.
ARTICLE III.
Committees of the Board of Directors
Executive Committee
Section 1. The Board of Directors may elect an Executive
Committee consisting of three or more Directors. If such a Committee is
established, the Board of Directors shall appoint one of the members of the
Executive Committee to the office of Chairman of the Executive Committee. The
Chairman and other members of the Executive Committee shall hold office until
the first meeting of the Board of Directors following the annual meeting of
stockholders next succeeding their respective elections or until removed by the
Board of Directors or until they shall cease to be Directors. Vacancies in the
Executive Committee or in the office of Chairman of the Executive Committee
shall be filled by the Board of Directors.
Section 2. If such a Committee is established, all the powers
of the Board of Directors in the management of the business and affairs of the
Corporation, except as otherwise provided by the Maryland General Corporation
Law, the Charter and these Bylaws, shall vest in the Executive Committee, when
the Board of Directors is not in session.
Audit and Finance Committee
Section 3. The Board of Directors may elect an Audit and
Finance Committee consisting of three or more Directors. The Board of Directors
shall appoint one of the members of the Audit and Finance Committee to the
office of Chairman of the Audit and Finance Committee. The Chairman and other
members of the Audit and Finance Committee shall hold office until the first
meeting of the Board of Directors following the annual meeting of stockholders
next succeeding their respective elections or until removed by the Board of
Directors or until they shall cease to be Directors. Vacancies in the Audit and
Finance Committee or in the office of Chairman of the Audit and Finance
Committee shall be filled by the Board of Directors.
Compensation Committee
Section 4. The Board of Directors may elect a Compensation
Committee consisting of three or more Directors. The Board of Directors shall
appoint one of the members of the Compensation Committee to the office of
Chairman of the Compensation Committee. The Chairman and other members of the
Compensation Committee shall hold office until the first meeting of the Board of
Directors following the annual meeting of stockholders next succeeding their
respective elections or until removed by the Board of Directors or until they
shall cease to be Directors. Vacancies in the Compensation Committee or in the
office of Chairman of the Compensation Committee shall be filled by the Board of
Directors.
Committee on Directors
Section 5. The Board of Directors may elect a Committee on
Directors consisting of three or more Directors. The Board of Directors shall
appoint one of the members of the Committee on Directors to the office of
Chairman
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of the Committee on Directors. The Chairman and other members of the Committee
on Directors shall hold office until the first meeting of the Board of Directors
following the annual meeting of stockholders next succeeding their respective
elections or until removed by the Board of Directors or until they shall cease
to be Directors. Vacancies in the Committee on Directors or in the office of
Chairman of the Committee on Directors shall be filled by the Board of
Directors.
Other Committees
Section 6. The Board of Directors may, by resolution adopted
by a majority of the entire Board, designate one or more additional committees,
each of which shall consist of one or more Directors of the Corporation, and if
it elects such a committee, shall appoint one of the members of the committee to
be Chairman thereof.
Meetings of Committees
Section 7. The Executive Committee and each other committee
shall meet from time to time on call of its Chairman or on call of any one or
more of its members or the Chairman of the Board for the transaction of any
business.
Section 8. At any meeting, however called, of the Executive
Committee and each other committee, a majority of its members shall constitute a
quorum for the transaction of business. A majority of such quorum shall decide
any matter that may come before the meeting.
Section 9. The Executive Committee and each other committee
shall keep minutes of its proceedings.
ARTICLE IV.
Officers
Section 1. The Board of Directors shall appoint one of their
number as Chairman of the Board and may appoint one of their number as Honorary
Chairman of the Board. In addition, the Board of Directors may appoint one of
their number as Acting Chairman of the Board. All of the duties and powers of
the Chairman of the Board shall be vested in the Acting Chairman of the Board in
the event of the absence of the Chairman or in the event that the Chairman
ceases, for any reason, to be a member of the Board and the Board has not yet
elected a successor. The Board of Directors shall appoint a Chief Executive
Officer who may also be a Director. The Board of Directors may also appoint one
or more Presidents, Senior Vice Presidents and Vice Presidents, who need not be
Directors, and such other officers and agents with such powers and duties as the
Board of Directors may prescribe. The Chief Executive Officer shall appoint a
Treasurer and a Secretary, neither of whom need be a Director, and may appoint a
Controller and one or more Assistant Vice Presidents, Assistant Controllers,
Assistant Secretaries and Assistant Treasurers, none of whom need be a Director.
All said officers shall hold office until the first meeting of the Board of
Directors following the annual meeting of the stockholders next succeeding their
respective elections, and until their successors are appointed and qualify. Any
two of said offices, except those of President and Senior Vice President or Vice
President, may, at the discretion of the Board of Directors, be held by the same
person.
Section 2. Subject to any supervisory duties that may be given
to the Chairman of the Board by the Board of Directors, the Chief Executive
Officer shall have direct supervision and authority over the affairs of the
Corporation. If the Chief Executive Officer is also a Director, and in the
absence of the Chairman of the Board, the Chief Executive Officer shall preside
at all meetings of the Board of Directors at which he shall be present. He shall
make a report of the operation of the Corporation for the preceding fiscal year
to the stockholders at their annual meeting and shall perform such other duties
as are incident to his office, or as from time to time may be assigned to him by
the Board of Directors or the Executive Committee, or by these Bylaws.
Section 3. The Chairman of the Board shall preside at all
meetings of the Board of Directors at which he shall be present and shall have
such other powers and duties as from time to time may be assigned to him by the
Board of Directors or the Executive Committee or by these Bylaws.
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Section 4. The Chairman of the Executive Committee shall
preside at all meetings of the Executive Committee at which he shall be present
and, in the absence of the Chairman of the Board and the Chief Executive
Officer, if the Chief Executive Officer is also a Director, shall preside at all
meetings of the Board of Directors at which he shall be present.
Section 5. Except as otherwise provided in these Bylaws, the
Presidents shall perform the duties and exercise all the functions of the Chief
Executive Officer in his absence or during his inability to act, in such manner
as from time to time may be determined by the Board of Directors or by the
Executive Committee. The Presidents, Senior Vice Presidents and Vice Presidents
shall have such other powers, and perform such other duties, as may be assigned
to him or them by the Board of Directors, the Executive Committee, the Chairman
of the Executive Committee, the Chief Executive Officer, or these Bylaws.
Section 6. The Secretary shall issue notices for all meetings,
shall keep the minutes of all meetings, shall have charge of the records of the
Corporation, and shall make such reports and perform such other duties as are
incident to his office or are required of him by the Board of Directors, the
Chairman of the Board, the Executive Committee, the Chairman of the Executive
Committee, the Chief Executive Officer, or these Bylaws.
Section 7. The Treasurer shall have charge of all monies and
securities of the Corporation and shall cause regular books of account to be
kept. The Treasurer shall perform all duties incident to his office or are
required by him of the Board of Directors, the Chairman of the Board, the
Executive Committee, the Chairman of the Executive Committee, the Chief
Executive Officer or these Bylaws, and may be required to give bond for the
faithful performance of his duties in such sum and with such surety as may be
required by the Board of Directors or the Executive Committee.
ARTICLE V.
Annual Statement of Affairs and Fiscal Year
Section 1. There shall be prepared annually a full and correct
statement of the affairs of the Corporation, to include a balance sheet and a
financial statement of the operations for the preceding fiscal year. The
statement of affairs shall be submitted at the annual meeting of the
stockholders and not more than twenty (20) days after the meeting, placed on
file at the Corporation's principal office. Such statement shall be prepared or
caused to be prepared by such executive officer of the Corporation as may be
designated by the Board of Directors. If no other executive officer is so
designated, it shall be the duty of the Chief Executive Officer to prepare or
cause to be prepared such statement.
Section 2. The fiscal year of the Corporation shall end on the
thirty-first day of December in each year, or on such other day as may be fixed
from time to time by the Board of Directors.
ARTICLE VI.
Seal
The Board of Directors shall provide (with one or more
duplicates) a suitable seal, containing the name of the Corporation, which shall
be in the charge of the Secretary or Assistant Secretaries.
ARTICLE VII.
Stock
Section 1. Shares of capital stock of the Corporation may be
issued as share certificates or may be uncertificated. If issued as share
certificates, such certificates shall be issued in such form as may be approved
by the Board of Directors and shall be signed by the Chief Executive Officer,
the Chairman of the Board, a President, a Senior Vice
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President or a Vice President, and also countersigned by one of the following:
the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary;
and shall be sealed with the seal of the Corporation (which may be in the form
of a facsimile of the seal of the Corporation).
Section 2. The Board of Directors shall have power and
authority to make all such rules and regulations as it may deem expedient
concerning the issue and registration of certificates of stock, provided,
however, that it shall conform to all requirements of any stock exchange upon
which any class of its stock is listed.
Section 3. The Board of Directors at any time by resolution
may direct that the stock transfer books be closed for a period not exceeding
twenty days immediately preceding any annual or special meeting of the
stockholders, or the payment of any dividend or any allotment of rights. In lieu
of providing for the closing of the books against transfers of stock as
aforesaid the Board of Directors may fix a date, not less than ten days nor more
than ninety days preceding the date of any meeting of stockholders, and not more
than ninety days preceding any dividend payment date or the date of any
allotment of rights, as a record date for the determination of the stockholders
entitled to notice of and to vote at such meeting, or entitled to receive such
dividends or rights, as the case may be.
Section 4. In case any certificate of stock is lost, stolen,
mutilated or destroyed, the Board of Directors shall authorize the issue of a
new certificate in place thereof upon such terms and conditions as it may deem
advisable.
ARTICLE VIII.
Execution of Instruments
All checks, drafts, bills of exchange, acceptances,
debentures, bonds, coupons, notes or other obligations or evidences of
indebtedness of the Corporation and also all deeds, mortgages, indentures, bills
of sale, assignments, conveyances or other instruments of transfer, contracts,
agreements, licenses, endorsements, stock powers, dividend orders, powers of
attorney, proxies, waivers, consents, returns, reports, applications,
appearances, complaints, declarations, petitions, stipulations, answers,
denials, certificates, demands, notices or documents, instruments or writings of
any nature shall be signed, executed, verified, acknowledged and delivered by
such officers, agents or employees of the Corporation, or any one of them, and
in such manner, as from time to time may be determined by the Board of Directors
or by the Executive Committee, except as provided by statute, by the Charter or
by these Bylaws.
ARTICLE IX.
Waiver of Notice of Meetings
Section 1. Notice of the time, place and/or purposes of any
meeting of stockholders shall not be required to be given to any stockholder who
shall attend such meeting in person or by proxy; if any stockholder shall, in
writing filed with the records of the meeting either before or after the holding
thereof, waive notice of any stockholders meeting, notice thereof need not be
given to him.
Section 2. Notice of any meeting of the Board of Directors
need not be given to any Director if he shall, in writing filed with the records
of the meeting either before or after the holding thereof, waive such notice;
and any meeting of the Board of Directors shall be a legal meeting without
notice thereof having been given, if all the Directors shall be present thereat.
ARTICLE X.
Amendment to Bylaws
Section 1. These Bylaws may be altered or repealed and new
Bylaws may be adopted (a) at any annual or special meeting of stockholders by
the affirmative vote of the holders of a majority of the voting power of the
stock issued
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and outstanding and entitled to vote thereat, provided, however, that to the
extent set forth in the Charter any proposed alteration or repeal of, or the
adoption of, any Bylaw shall require the affirmative vote of the holders of at
least 80% of the voting power of all Voting Stock (as defined in the Charter)
then outstanding, voting together as a single class, and provided, further,
however, that, in the case of any such stockholder action at a special meeting
of stockholders, notice of the proposed alteration, repeal or adoption of the
new Bylaw or Bylaws must be contained in the notice of such special meeting, or
(b) by the affirmative vote of a majority of the Whole Board.
ARTICLE XI.
Indemnification
Section 1. The provisions of Section 2-418 of the Maryland
General Corporation Law, as in effect from time to time, and any successor
thereto, are hereby incorporated by reference in these Bylaws.
Section 2. Subject to the provisions of Section 4 of this
Article XI, the Corporation (a) shall indemnify its Directors and officers,
whether serving the Corporation or at its request any other entity, to the full
extent required or permitted by the General Laws of the State of Maryland now or
hereafter in force, including the advance of expenses under the procedures set
forth in Section 3 hereof and to the full extent permitted by law and (b) may
indemnify other employees and agents to such extent, if any, as shall be
authorized by the Board of Directors and be permitted by law, and may advance
expenses to employees and agents under the procedures set forth in Section 5
hereof. For purposes of this Article XI, the "advance of expenses" shall include
the providing by the Corporation to a Director, officer, employee or agent who
has been named a party to a proceeding, of legal representation by, or at the
expense of, the Corporation.
Section 3. Any indemnification of an officer or Director or
advance of expenses to an officer or Director in advance of the final
disposition of any proceeding, shall be made promptly, and in any event within
sixty (60) days, upon the written request of the Director or officer entitled to
request indemnification. A request for advance of expenses shall contain the
affirmation and undertaking described in Section 5 hereof and be delivered to
the General Counsel of the Corporation or to the Chairman of the Board. The
right of an officer or Director to indemnification and advance of expenses
hereunder shall be enforceable by the officer or Director entitled to request
indemnification in any court of competent jurisdiction, if (a) the Corporation
denies such request, in whole or in part, or (b) no disposition thereof is made
within sixty (60) days. The costs and expenses incurred by the officer or
Director entitled to request indemnification in connection with successfully
establishing his or her right to indemnification, in whole or in part, in any
such action shall, subject to Section 4 hereof, also be indemnified by the
Corporation. All rights of an officer or Director to indemnification and advance
of expenses hereunder shall be deemed to be a contract between the Corporation
and each Director or officer of the Corporation who serves or served in such
capacity at any time while this Article XI is in effect.
Section 4. Anything in this Article XI to the contrary
notwithstanding except in circumstances where indemnification is required under
the General Laws of the State of Maryland now or hereafter in force, no
indemnification of a Director or officer may be made hereunder unless a
determination has been made in accordance with the procedures set forth in
Section 2-418(a) of the Maryland General Corporation Law, as in effect from time
to time and any successor thereto, that the officer or Director requesting
indemnification has met the requisite standard of conduct. An officer or
Director requesting indemnification shall have met the requisite standard of
conduct unless it is established that: (a) the act or omission of the Director
or officer was material to the matter giving rise to the proceeding, and (i) was
committed in bad faith, or (ii) was the result of active and deliberate
dishonesty; or (b) the Director or officer actually received an improper benefit
in money, property or services; or (c) in the case of a criminal proceeding, the
Director or officer had reasonable cause to believe the act or omission was
unlawful.
Section 5. The Corporation may advance expenses, prior to the
final disposition of any proceeding, to or on behalf of an employee or agent of
the Corporation who is a party to a proceeding as to action while employed by or
on behalf of the Corporation and who is neither an officer nor Director of the
Corporation upon (a) the submission by the employee or agent to the General
Counsel of the Corporation of a written affirmation that it is such employee's
or agent's good faith belief that such employee or agent has met the standard of
conduct as set forth in Section 4 hereof and an undertaking by such employee or
agent to reimburse the Corporation for the advance of expenses by the
Corporation to or on
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behalf of such employee or agent if it shall ultimately be determined that the
standard of conduct has not been met and (b) the determination by the General
Counsel, in his discretion, that advance of expenses to the employee or agent is
appropriate in light of all of the circumstances, subject to such additional
conditions and restrictions not inconsistent with this Article XI as the General
Counsel shall impose.
Section 6. The indemnification and advance of expenses
provided by this Article XI (a) shall not be deemed exclusive of any other
rights to which a person requesting indemnification or advance of expenses may
be entitled under any law (common or statutory), or any agreement, vote of
stockholders or disinterested Directors or other provision that is not contrary
to law, both as to action in his or her official capacity and as to action in
another capacity while holding office or while employed by or acting as agent
for the Corporation, (b) shall continue in respect of all events occurring while
a person was a Director, officer, employee or agent of the Corporation, and (c)
shall inure to the benefit of the estate, heirs, executors and administrators of
such person.
Section 7. This Article XI shall be effective from and after
the date of its adoption and shall apply to all proceedings arising prior to or
after such date, regardless of whether relating to facts or circumstances
occurring prior to or after such date. Subject to Article X of these Bylaws
nothing herein shall prevent the amendment of this Article XI, provided that no
such amendment shall diminish the rights of any person hereunder with respect to
events occurring or claims made before the adoption of such amendment or as to
claims made after such adoption in respect of events occurring before such
adoption.
Section 8. The Board of Directors may take such action as is
necessary to carry out the indemnification provisions of this Article XI and is
expressly empowered to adopt, approve and amend from time to time such
resolutions or contracts implementing such provisions or such further
indemnification arrangements as may be permitted by law.
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