Exhibit 3.1
BYLAWS
OF
SONIC AUTOMOTIVE, INC.
(amended through August 8, 2001)
TABLE OF CONTENTS
ARTICLE 1 - REGISTERED AND OTHER OFFICES......................................................... 1
SECTION 1.01. REGISTERED OFFICE............................................................. 1
SECTION 1.02. OTHER OFFICES................................................................. 1
ARTICLE 2 - MEETINGS OF STOCKHOLDERS............................................................. 1
SECTION 2.01. ANNUAL MEETINGS............................................................... 1
SECTION 2.02. SPECIAL MEETINGS.............................................................. 1
SECTION 2.03. NOTICE OF MEETINGS............................................................ 2
SECTION 2.04. STOCKHOLDER LIST.............................................................. 2
SECTION 2.06. VOTING........................................................................ 2
SECTION 2.07. NO ACTION WITHOUT A MEETING................................................... 3
SECTION 2.08. ADVANCE NOTICE OF DIRECTOR NOMINATIONS AND R BUSINESS......................... 3
ARTICLE 3 - DIRECTORS............................... ............................................ 4
SECTION 3.01. POWERS........................................................................ 4
SECTION 3.02. NUMBER AND TERM............................................................... 4
SECTION 3.03. RESIGNATIONS................... .............................................. 5
SECTION 3.04. VACANCIES..................................................................... 5
SECTION 3.05. REMOVAL....................................................................... 5
SECTION 3.06. MEETINGS; PLACE AND TIME...................................................... 5
SECTION 3.07. REGULAR ANNUAL MEETNG......................................................... 5
SECTION 3.08. OTHER REGULAR MEETINGS........................................................ 5
SECTION 3.09. SPECIAL MEETINGS; NOTICE...................................................... 6
SECTION 3.10. QUORUM........................................................................ 6
SECTION 3.11. ACTION WITHOUT MEETING........................................................ 6
SECTION 3.12. TELEPHONE MEETINGS............................................................ 6
SECTION 3.13. COMMITTEES OF DIRECTORS....................................................... 6
SECTION 3.14. COMPENSATION OF DIRECTORS..................................................... 6
SECTION 3.15. DIRECTOR CONFLICTS OF INTEREST................................................ 7
ARTICLE 4 - OFFICERS............................................................................. 7
SECTION 4.01. OFFICERS...................................................................... 7
SECTION 4.02. CHAIRMAN; CHIEF EXECUTIVE OFFICER............................................. 8
SECTION 4.03. PRESIDENT..................................................................... 8
SECTION 4.04. CHIEF OPERATING OFFICER....................................................... 8
SECTION 4.05. CHIEF FINANCIAL OFFICER....................................................... 8
SECTION 4.07. TREASURER..................................................................... 8
SECTION 4.08. SECRETARY..................................................................... 9
SECTION 4.09. CONTROLLER, ASSISTANT TREASURERS AND ASSISTANT SECRETARIES.................... 9
SECTION 4.10. REMOVAL; RESIGNATIONS; VACANCIES.............................................. 9
SECTION 4.11. COMPENSATION.................................................................. 9
SECTION 4.12. MECHANICAL ENDORSEMENT........................................................ 9
ARTICLE 5 - MISCELLANEOUS........................................................................ 10
SECTION 5.01. STOCK CERTIFICATES............................................................ 10
SECTION 5.02. STOCKHOLDERS RECORD DATE................ ..................................... 11
SECTION 5.03. REGISTERED STOCKHOLDERS....................................................... 11
SECTION 5.04. DIVIDENDS..................................................................... 11
SECTION 5.05. SEAL.......................................................................... 11
SECTION 5.06. FISCAL YEAR................................................................... 11
SECTION 5.07. CHECKS........................................................................ 12
SECTION 5.08. NOTICE AND WAIVER OF NOTICE................................................... 12
SECTION 5.09. BOOKS AND RECORDS............................................................. 12
ARTICLE 6 - INDEMNIFICATION OF OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS......................... 12
SECTION 6.01. INDEMNIFICATION............................................................... 12
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SECTION 6.02. PROCEDURE FOR INDEMNIFICATION OF DIRECTORS AND OFFICERS............................ 13
SECTION 6.03. PAYMENT OF EXPENSES IN ADVANCE..................................................... 14
SECTION 6.04. INDEMNIFICATION NOT EXCLUSIVE...................................................... 14
SECTION 6.05. OTHER.............................................................................. 14
SECTION 6.06. INDEMNIFICATION AGREEMENTS......................................................... 14
SECTION 6.07. INSURANCE.......................................................................... 14
SECTION 6.08. CONTINUED COVERAGE................................................................. 14
ARTICLE 7- AMENDMENTS................................................................................. 15
ARTICLE 8- CONFLICT OF TERMS.......................................................................... 15
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BYLAWS
OF
SONIC AUTOMOTIVE, INC.
ARTICLE 1 - REGISTERED AND OTHER OFFICES
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SECTION 1.01. REGISTERED OFFICE.
The address of the initial registered office in the State of Delaware
and the name of the initial registered agent of Sonic Automotive, Inc. (the
"Corporation") at such address are set forth in the Amended and Restated
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Certificate of Incorporation of the Corporation (the "Certificate of
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Incorporation"). The Corporation may, from time to time, designate a different
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address as its registered office or a different person as its registered agent,
or both; provided, however, that such designation shall become effective
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upon the filing of a statement of such change with the Department of
State of the State of Delaware as is required by law.
SECTION 1.02. OTHER OFFICES.
The Corporation may have other offices, either within or without the
State of Delaware, at such place or places as the Board of Directors (the
"Board") may from time to time determine or the business of the Corporation may
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require.
ARTICLE 2 - MEETINGS OF STOCKHOLDERS
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SECTION 2.01. ANNUAL MEETINGS.
Annual meetings of stockholders for the election of directors and for
the transaction of any other business properly brought before the stockholders
in accordance with Section 2.08 hereof shall be held at such place, either
within or without the State of Delaware, and at such time and date as the Board,
by resolution, shall determine and as set forth in the notice of the meeting.
If the date of the annual meeting shall fall upon a legal holiday, the
meeting shall be held on the next succeeding business day. At each annual
meeting, the stockholders entitled to vote shall elect directors to succeed
those directors whose term expires at such annual meeting and may transact such
other business as is properly brought before the stockholders in accordance with
Section 2.08 hereof.
SECTION 2.02. SPECIAL MEETINGS.
Special meetings of the stockholders, for any purpose, unless otherwise
prescribed by statute or by the Certificate of Incorporation, may be called only
by the Chairman of the Board and shall be called by the Secretary or any
Assistant Secretary, at the request in writing of a majority of the directors.
Such request shall state the purpose of the proposed meeting. At each
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special meeting, the stockholders may transact only the business that is
properly brought before the stockholders in accordance with Section 2.08 hereof.
If a special meeting is adjourned to another time or place, the stockholders may
only transact business at the adjourned meeting that may have properly been
transacted at the original meeting.
SECTION 2.03. NOTICE OF MEETINGS.
Written notice, stating the place, date and time of any annual or
special meeting, and, in the case of a special meeting, the purpose or purposes
for which the meeting is called, shall be given to each stockholder entitled to
vote at such meeting in accordance with Delaware law, by or at the direction of
the Board or the person or persons calling the meeting, not less than ten (10)
nor more than sixty (60) days before the date of the meeting. If mailed, then
such notice shall be deemed to be given when deposited in the United States
mail, postage prepaid, addressed to the stockholder at his address as it appears
on the stock transfer books of the Corporation.
SECTION 2.04. STOCKHOLDER LIST.
The officer or agent who has charge of the stock ledger of the
Corporation shall, at least ten (10) days before each meeting of stockholders,
prepare a complete alphabetical list of the stockholders entitled to vote at the
ensuing meeting, with the address and the number and class and series, if any,
of shares held by each. Said list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during ordinary business
hours, for a period of at least ten (10) days prior to the meeting, either at a
place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall be available for inspection at
the meeting.
SECTION 2.05. QUORUM.
Except as otherwise required by the General Corporation Law of the
State of Delaware (the "Act"), by the Certificate of Incorporation or by these
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Bylaws, a majority of the shares entitled to vote, represented in person or by
proxy, shall constitute a quorum at a meeting of stockholders. When a specified
item of business is required to be voted on by a class or series of stock, a
majority of the shares of such class or series, represented in person or by
proxy, shall constitute a quorum for the transaction of such item of business by
that class or series. After a quorum has been established at a stockholders'
meeting, the subsequent withdrawal of stockholders, so as to reduce the number
of shares entitled to vote at the meeting below the number required for a
quorum, shall not affect the validity of any action taken at the meeting or any
adjournment thereof.
SECTION 2.06. VOTING.
If a quorum is present, the affirmative vote of a majority of the votes
cast by shares entitled to vote on the subject matter shall be the act of the
stockholders, unless the vote of a greater number or voting by class is required
by the Act, the Certificate of Incorporation or these Bylaws. Where a separate
vote by class is required, the affirmative vote of a majority of the votes cast
by shares of such class shall be the act of such class unless the vote of a
greater
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number is required by the Act, the Certificate of Incorporation or these Bylaws.
Each outstanding share, regardless of class, shall be entitled to one vote on
each matter submitted to a vote at a meeting of stockholders, except as may
otherwise be provided by the Act or by the Certificate of Incorporation. The
affirmative vote of a plurality of the votes cast by shares entitled to vote on
the election of directors shall be sufficient to elect directors. Cumulative
voting of shares is prohibited. A stockholder may vote either in person or by
proxy executed in writing by the stockholder or his duly authorized attorney-in-
fact.
SECTION 2.07. NO ACTION WITHOUT A MEETING.
No action required to be taken or that may be taken at an annual or
special meeting of stockholders of the Corporation may be taken without a
meeting, and the power of stockholders to consent in writing, without a meeting,
to the taking of any action is specifically denied.
SECTION 2.08. ADVANCE NOTICE OF DIRECTOR NOMINATIONS AND OTHER
BUSINESS.
(a) Director Nominations. Subject to any rights of holders of
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Preferred Stock, only persons who are selected and recommended by the Board of
Directors or a committee of the Board of Directors established to make
nominations, or who are nominated by stockholders in accordance with the
procedures set forth in this Section 2.08, shall be eligible for election at any
annual or special stockholders meeting. Nominations of individuals for election
to the Board of Directors of the Corporation at any annual meeting or any
special meeting of stockholders at which directors are to be elected may be made
by a stockholder of the Corporation entitled to vote for the election of
directors at that meeting as hereinafter set forth. Nominations by stockholders
shall be delivered to the Corporation in accordance with subsection 2.08(c)
hereof and shall be made by written notice (a "Nomination Notice"), which shall
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set forth, (i) as to each individual nominated, (A) the name, date of birth,
business address and residence address of such individual and (B) such other
information regarding each individual nominated that is to be disclosed in
solicitations of proxies for an election of directors, or is otherwise required,
in each case pursuant to the Securities Exchange Act of 1934, as amended, and
the rules promulgated thereunder, and, (ii) as to the stockholder submitting the
Nomination Notice and any person acting in concert with such stockholder, (w)
the name and business address of such stockholder and each such person, (x) the
name and business address of such stockholder and each such person as they
appear on the Corporation's books along with a representation that such
stockholder is a stockholder of record of shares of the Corporation's capital
stock entitled to vote at the meeting to which the notice pertains and intends
to appear in person or by proxy at the meeting to nominate the person(s) in the
notice, (y) a description of all arrangements, understandings or relationships
between the stockholder and each nominee and any other person or persons (naming
such person(s)) pursuant to which the nomination(s) are to be made by the
stockholder and (z) the class and number of shares of the Corporation which are
beneficially owned by such stockholder and each such person. A written consent
to being named in the proxy statement as a nominee and to serving as a director
of the Corporation if elected, signed by each nominee, shall be filed with any
Nomination Notice. If the presiding officer at any meeting of the stockholders
determines that any nomination was not made in accordance with the procedures
prescribed by these Bylaws, then he shall so declare to the stockholders at the
meeting, and the defective nomination shall be disregarded.
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(b) Stockholder Business. At any meeting of the stockholders, only
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such business shall be conducted as shall have been properly brought before the
meeting. To be properly brought before a meeting, business must be (a) specified
in the notice of meeting (or any supplement thereto) given by or at the
direction of the Board of Directors, (b) otherwise properly brought before the
meeting by or at the direction of the Board of Directors or (c) properly brought
before the meeting by a stockholder of record (who was also a stockholder of
record at the time of giving of the notice) in accordance with the procedures
set forth in this Section 2.08. A stockholder's written notice (a "Business
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Notice") shall set forth, as to each matter the stockholder proposes to bring
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before the meeting: (i) a brief description of the business desired to be
brought before the meeting and the reasons for conducting such business at the
meeting, (ii) the name and business address of record of the stockholder
proposing such business, (iii) the class and number of shares of the Corporation
which are beneficially owned by the stockholder and (iv) any material interest
of the stockholder in such business. If the presiding officer at any meeting of
stockholders determines that business was not properly brought before the
meeting, then he shall so declare to the stockholders at the meeting, and any
such business not properly brought before the meeting shall not be transacted.
(c) Delivery of Notices. To be timely, any Nomination Notice or
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Business Notice must be delivered to, or mailed and received at, the principal
executive office of the Corporation, (i) in the case of an annual meeting that
is called for a date that is within thirty (30) days before or after the
anniversary date of the immediately preceding annual meeting of stockholders,
not less than sixty (60) days nor more than ninety (90) days prior to such
anniversary date, and (ii) in the case of an annual meeting that is called for a
date that is not within thirty (30) days before or after the anniversary date of
the immediately preceding annual meeting, or in the case of a special meeting of
stockholders called for the purpose of electing directors, not later than the
close of business on the tenth day following the day on which notice of the date
of the meeting was mailed or public disclosure of the date of the meeting was
made, whichever occurs first.
ARTICLE 3 - DIRECTORS
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SECTION 3.01. POWERS.
The business of the Corporation shall be managed by or under the
direction of the Board, which may exercise all such powers of the Corporation
and do all such lawful acts and things as are not by statute or by the
Certificate of Incorporation or by these Bylaws specifically reserved to the
shareholders.
SECTION 3.02. NUMBER AND TERM.
The Board shall consist of not less than three (3) nor more than eleven
(11) directors as a majority of the Board shall from time to time specify. No
reduction in the number of directors shall have the effect of shortening the
term of any incumbent director and when so fixed such number shall continue to
be the authorized number of directors until changed in accordance herewith. The
Board shall be divided into three classes, as nearly equal in number as
possible. Each of the Class I, Class II and Class III directors shall initially
be elected to serve until the 1998, 1999 and 2000 annual meetings of
stockholders, respectively, and, thereafter, the
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successors in each class of directors shall be elected to serve until the third
(3rd) annual meeting of stockholders following his election and qualification.
Each director shall serve until his successor shall have been elected and
qualified or until his earlier resignation, removal or death.
SECTION 3.03. RESIGNATIONS.
Any director or member of a committee may resign at any time. Such
resignation shall be made in writing, and shall take effect at the time
specified therein, and, if no time be specified, at the time of its receipt by
the Chairman of the Board, the President or the Secretary. The acceptance of a
resignation shall not be necessary to make it effective, unless otherwise
specified therein.
SECTION 3.04. VACANCIES.
Subject to any rights of holders of Preferred Stock, any vacancy
occurring in the Board of Directors, including any vacancy created by reason of
an increase in the number of directors, removal, resignation or death, may only
be filled by the affirmative vote of a majority of the remaining directors then
in office though less than a quorum of the Board of Directors, or by a sole
remaining director, as the case may be, and the director(s) so chosen shall hold
office until the next election of the class for which such director(s) has(have)
been chosen, and until his(their) successors are duly elected and qualified, or
until his(their) earlier resignation or removal. In the event of any increase or
decrease in the number of directors, the additional or eliminated directors
shall be classified or chosen so that all classes of directors shall remain or
become as nearly equal in number as possible.
SECTION 3.05. REMOVAL.
Notwithstanding any other provision of these Bylaws to the contrary, a
director may not be removed during his term except for cause.
SECTION 3.06. MEETINGS; PLACE AND TIME.
The Board may hold meetings, both regular and special, either within or
without the State of Delaware, as it may from time to time determine.
SECTION 3.07. REGULAR ANNUAL MEETING.
A regular annual meeting of the Board shall be held immediately
following the annual meeting of stockholders at the same place or at such time
and place as shall be fixed by the vote of the stockholders at the annual
meeting and no notice of such meeting shall be necessary to the newly elected
directors in order legally to constitute the meeting, provided a majority of
such Board shall be present.
SECTION 3.08. OTHER REGULAR MEETINGS.
Regular meetings of the Board may be held without notice at such time
and at such place as shall from time to time be determined by the Board.
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SECTION 3.09. SPECIAL MEETINGS; NOTICE.
Special meetings of the Board may be called by the Chairman of the
Board or the President or by the written request of two (2) directors. Written
notice of the time and place of special meetings shall be given to each director
by either personal delivery, telegram, cablegram or telefax at least seven (7)
days before the meeting, or by notice mailed to each director at least ten (10)
days before the meeting. Notice of a meeting need not be given to any director
who submits a waiver of notice, whether before or after the meeting, or who
attends the meeting without protesting, prior thereto or at its commencement,
the lack of notice to him.
SECTION 3.10. QUORUM.
At all meetings of the Board, a majority of the directors then serving
shall constitute a quorum for the transaction of business and the act of a
majority of the directors present at any meeting at which there is a quorum
shall be the act of the Board, except as may be otherwise specifically provided
by statute or by the Certificate of Incorporation. If a quorum shall not be
present at any meeting of the Board, the directors present thereat may adjourn
the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
SECTION 3.11. ACTION WITHOUT MEETING.
Unless otherwise restricted by the Certificate of Incorporation, any
action required or permitted to be taken at any meeting of the Board, or of any
committee thereof, may be taken without a meeting, if all members of the Board
or committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board or committee.
SECTION 3.12. TELEPHONE MEETINGS.
Unless otherwise restricted by the Certificate of Incorporation,
members of the Board, or of any committee thereof, may participate in a meeting
of the Board or such committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
SECTION 3.13. COMMITTEES OF DIRECTORS.
The Board may, by resolution passed by a majority of the whole Board,
designate one or more committees, each committee to consist of one or more of
the directors of the Corporation. Each such committee may be terminated by the
Board at such time as the Board may determine.
SECTION 3.14. COMPENSATION OF DIRECTORS.
Unless otherwise restricted by the Certificate of Incorporation or
these Bylaws, the Board shall have the authority to fix the compensation of
directors. By resolution of the Board, the
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directors may be paid their expenses, if any, of attendance at each meeting of
the Board (and any committee thereof), a fixed sum for attendance at each
meeting of the Board (and any committee thereof), and a stated salary as
director. Nothing herein contained shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor.
SECTION 3.15. DIRECTOR CONFLICTS OF INTEREST.
No contract or other transaction between the Corporation and one or
more of its directors or between the Corporation and any other corporation,
firm, association or entity in which one or more of the directors of this
Corporation are directors or officers or are financially interested, shall be
void or voidable solely because of such relationship or interest or solely
because such director or directors are present at or participate in the meeting
of the Board or a committee thereof which authorizes, approves or ratifies such
contract or transaction or solely because his or their votes are counted for
such purpose, if:
A. The material facts as to his or their relationship or interest and
as to the contract or transaction are disclosed or are known to the Board or
committee, and the Board or committee in good faith authorizes, approves or
ratifies the contract or transaction by the affirmative votes of a majority of
the disinterested directors, even though the disinterested directors be less
than a quorum; or
B. The material facts as to his or their relationship or interest and
as to the contract or transaction are disclosed or known to the stockholders
entitled to vote thereon, and the contract or transaction is specifically
approved in good faith by vote of such stockholders, or
C. The contract or transaction is fair as to the corporation at the
time it is authorized, approved or ratified by the Board, a committee or the
stockholders.
Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the Board or a committee thereof which
authorizes, approves or ratifies such contract or transaction.
ARTICLE 4 - OFFICERS
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SECTION 4.01. OFFICERS.
The officers of the Corporation shall consist of a President, a
Treasurer and a Secretary, shall be elected by the Board and shall hold office
until their successors are elected and qualified, unless such officers resign,
die or are removed prior thereto. In addition, the Board may elect a Chairman, a
Vice Chairman, a Chief Executive Officer, a Chief Operating Officer, a Chief
Financial Officer, a Controller, one or more Vice Presidents or Executive Vice
Presidents, and such Assistant Secretaries and Assistant Treasurers or other
officers as it may deem proper. None of the officers of the Corporation need be
stockholders. The officers shall be elected at the first meeting of the Board
after each annual meeting. More than two offices may be held by the same person,
except the offices of President and Secretary, unless the Certificate of
Incorporation or these Bylaws otherwise provide. The Board shall designate the
Chairman of the Board or the President as the Chief Executive Officer of the
Corporation.
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SECTION 4.02. CHAIRMAN; CHIEF EXECUTIVE OFFICER.
The Chairman of the Board, if one is elected, shall preside at all
meetings of the shareholders and of the Board. The Chairman shall also have and
perform such other duties as from time to time may be assigned to him by the
Board. The Chief Executive Officer of the Corporation shall, subject to the
direction of the Board, supervise and control the business and management of the
Corporation. The Chief Executive Officer shall also have and perform such other
duties as from time to time may be assigned to him by the Board.
SECTION 4.03. PRESIDENT.
The President shall have and perform all duties incident to the office
of President and such other duties as from time to time may be assigned to him
by the Board. If designated as the Chief Executive Officer by the Board, the
President shall, subject to the direction of the Board, supervise and control
the business and management of the Corporation. If there is no Chairman, or in
his absence, the President shall preside at all meetings of the stockholders.
SECTION 4.04. CHIEF OPERATING OFFICER.
The Chief Operating Officer, if one is elected, shall have and perform
such duties as from time to time may be assigned to him by the Chief Executive
Officer.
SECTION 4.05. CHIEF FINANCIAL OFFICER.
The Chief Financial Officer, if one is elected, shall have and perform
such duties as from time to time may be assigned to him by the Chief Executive
Officer.
SECTION 4.06. VICE PRESIDENTS OR EXECUTIVE VICE PRESIDENTS.
If Vice Presidents or Executive Vice Presidents be elected, they shall
have such powers and shall perform such duties as shall be assigned to them by
the President.
SECTION 4.07. TREASURER.
The Treasurer shall be responsible for the administration of the
corporate funds and securities and shall keep full and accurate account of
receipts and disbursements in books belonging to the Corporation. The Treasurer
shall disburse the funds of the Corporation as may be ordered by the President,
taking proper vouchers for such disbursements. He shall render to the Chairman,
the President and the Board at the regular meetings of the Board, or whenever
they may request it, an account of all his transactions as Treasurer and of the
financial condition of the Corporation. If required by the Board, he shall give
the Corporation a bond for the faithful performance of his duties in such amount
and with such surety as the Board shall prescribe.
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SECTION 4.08. SECRETARY.
The Secretary shall give, or cause to be given, notice of all meetings
of stockholders and directors, and all other notices required by law or by these
Bylaws, and in case of his absence or refusal or neglect so to do, any such
notice may be given by any person thereunto directed by the Chairman of the
Board, the President or the Board. He shall record all the proceedings of the
meetings of the Corporation and of the Board in a book to be kept for that
purpose. He shall keep in safe custody the seal of the Corporation, and, when
authorized by the Board, shall affix the same to any instrument requiring it,
and when so affixed, it shall be attested by his signature or by the signature
of any Assistant Secretary.
SECTION 4.09. CONTROLLER, ASSISTANT TREASURERS AND ASSISTANT
SECRETARIES.
Controller, Assistant Treasurers and Assistant Secretaries, if any be
elected, shall have such powers and shall perform such duties as shall be
assigned to them, respectively, by the Chairman of the Board or the President.
SECTION 4.10. REMOVAL; RESIGNATIONS; VACANCIES.
Any officer elected or appointed by the Board may be removed at any
time, either for or without cause, by the affirmative vote of a majority of the
Board. Section 3.03 shall apply similarly to resignations of officers. Any
vacancy occurring in any office of the Corporation may be filled by the Board.
SECTION 4.11. COMPENSATION.
The compensation of officers of the Corporation shall be established by
the Board or any compensation committee thereof. The fact that an officer is
also a director shall not preclude such person from receiving compensation as
either a director or officer, nor shall it affect the validity of any resolution
by the Board fixing such compensation. If the Chairman of the Board is also the
Chief Executive Officer of the Corporation, the Chairman shall have authority to
establish the salaries of all other employees of the Corporation. If the
Chairman of the Board is not the Chief Executive Officer of the Corporation, the
President shall have authority to establish the salaries of all other employees
of the Corporation.
SECTION 4.12. MECHANICAL ENDORSEMENT.
The Chairman of the Board, the President, any Executive Vice President,
any Vice President, or the Secretary may authorize any endorsement on behalf of
the Corporation to be made by such mechanical means or stamps as any of such
officers may deem appropriate.
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ARTICLE 5 - MISCELLANEOUS
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SECTION 5.01. STOCK CERTIFICATES.
(a) Issuance. The Corporation may issue the shares of stock authorized
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by its Certificate of Incorporation and none other. Shares may be issued only
pursuant to a resolution adopted by the Board. Every holder of shares in the
Corporation shall be entitled to have a certificate representing all shares to
which he is entitled. No certificate shall be issued for any share until such
share is fully paid.
(b) Signatures. Certificates representing shares in the Corporation
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shall be signed by or in the name of the Corporation by the Chairman or Vice
Chairman, or the President, Executive Vice President or Vice President, and by
the Secretary or an Assistant Secretary, or the Treasurer or an Assistant
Treasurer, and may be sealed with the seal of the Corporation or a facsimile
thereof. Any or all of the signatures on a certificate may be facsimile. In case
any officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent or registrar before such certificate is issued, it may
be issued by the Corporation with the same effect as if he were such officer,
transfer agent or registrar at the date of issue.
(c) Form. Each certificate representing shares shall state upon the
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face thereof: the name of the Corporation; that the Corporation is organized
under the laws of Delaware; the name of the person or persons to whom it is
issued; the number and class of shares, and the designation of the series, if
any, which such certificate represents; and the par value of each share
represented by such certificate, or a statement that the shares are without par
value. Each certificate shall otherwise comply, in all respects, with the
requirements of the Act.
(d) Transfer of Stock. The Corporation shall register a stock
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certificate presented to it for transfer if the certificate is properly endorsed
by the holder of record or by his duly authorized attorney; provided, however,
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that the Corporation or its transfer agent may require the signature of such
person to be guaranteed by a commercial bank or trust company or by a member of
the New York or American Stock Exchange.
(e) Lost, Stolen or Destroyed Certificates. The Board may authorize
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the Corporation to issue a new stock certificate in the place of any certificate
previously issued if the holder of record of the certificate (i) makes proof in
affidavit form that it has been lost, destroyed or wrongfully taken; (ii)
requests the issue of a new certificate before the Corporation has notice that
the certificate has been acquired by a purchaser for value in good faith and
without notice of any adverse claim; (iii) gives bond in such form, if any, as
the Corporation may direct, to indemnify the Corporation, the transfer agent and
registrar against any claim that may be made on account of the alleged loss,
destruction or theft of a certificate; and (iv) satisfies any other reasonable
requirements imposed by the Corporation.
(f) Transfer Agents; Registrars; Rules Respecting Certificate. The
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Board may appoint, or authorize any officer or officers to appoint, one or more
transfer agents and one or
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more registrars. The Board may make such further rules and regulations as it may
deem expedient concerning the issue, transfer and registration of stock
certificates of the Corporation.
SECTION 5.02. STOCKHOLDERS RECORD DATE.
In order that the Corporation may determine the stockholders entitled
to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock or for the purpose of any other lawful
action, the Board may fix, in advance, a record date, which record date shall
not precede the date upon which the resolution fixing the record date is adopted
and, with respect to record dates to be established in connection with
stockholders meetings, which shall not be more than sixty (60) nor less than ten
(10) days before the date of such meeting, or, with respect to record dates to
be established in connection with other actions, which shall not be more than
sixty (60) days prior to such other action. A determination of stockholders of
record entitled to notice of or to vote at a meeting of stockholders shall apply
to any adjournment of the meeting; provided, however, that the Board may fix a
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new record date for the adjourned meeting.
SECTION 5.03. REGISTERED STOCKHOLDERS.
The Corporation shall be entitled to recognize the exclusive right of a
person registered on its books as the owner of shares, and shall not be bound to
recognize any equitable or other claim to or interest in such share or shares on
the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by the laws of the State of
Delaware.
SECTION 5.04. DIVIDENDS.
Subject to the provisions of the Certificate of Incorporation, the
Board may, out of funds legally available therefor at any regular or special
meeting, declare dividends upon the capital stock of the Corporation as and when
they deem expedient. Dividends may be paid in cash, in property or in shares of
the capital stock, subject to the provisions of the Certificate of
Incorporation. Before declaring any dividends, there may be set aside out of any
funds of the Corporation available for dividends such sum or sums as the Board
from time to time in its discretion deems proper for working capital or as a
reserve fund to meet contingencies or for such other purpose as the Board shall
deem conducive to the interests of the Corporation, and the Board may modify or
abolish any such reserve.
SECTION 5.05. SEAL.
The corporate seal shall be circular in form and shall contain the name
of the Corporation and the words "CORPORATE SEAL, DELAWARE." Said seal may be
used by causing it or a facsimile thereof to be impressed or affixed or
otherwise reproduced.
SECTION 5.06. FISCAL YEAR.
The fiscal year of the Corporation shall be determined by the Board.
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SECTION 5.07. CHECKS.
All checks, drafts, or other orders for the payment of money and notes
or other evidences of indebtedness issued in the name of the Corporation shall
be signed by such officer or officers, agent or agents of the Corporation, and
in such manner as shall be determined from time to time by resolution of the
Board. The Treasurer shall deposit all moneys and other valuables in the name
and to the credit of the Corporation in such depositories as may be authorized
by the Chairman of the Board or the President.
SECTION 5.08. NOTICE AND WAIVER OF NOTICE.
Whenever any notice is required by these Bylaws to be given, personal
notice is not meant unless expressly stated, and any notice so required shall be
deemed to be sufficient if given by depositing the same in the United States
mail, airmail postage prepaid, addressed to the person entitled thereto at his
address as it appears on the records of the Corporation, and such notice shall
be deemed to have been given on the day of such mailing. Stockholders not
entitled to vote shall not be entitled to receive notice of any meetings except
as otherwise provided by statute.
Whenever any notice whatever is required to be given under the
provisions of any law, or under the provisions of the Certificate of
Incorporation or these Bylaws, a waiver thereof in writing signed by the person
or person entitled to said notice, whether before or after the time stated
therein, shall be deemed proper notice.
SECTION 5.09. BOOKS AND RECORDS.
The Corporation shall keep correct and complete books and records of
accounts and shall keep minutes of the proceedings of its stockholders, the
Board and committees thereof.
ARTICLE 6 - INDEMNIFICATION OF OFFICERS, DIRECTORS, EMPLOYEES AND
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AGENTS
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SECTION 6.01. INDEMNIFICATION.
Any person who has been made or is made 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 (including an action by
or in the right of the Corporation) (hereinafter a "proceeding"), by reason of
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the fact that he is or was a director or officer of the Corporation or is or was
serving at the request of the Corporation as a director, officer, fiduciary or
agent of another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans, shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by the Act, as the same exists or may hereafter be amended (but, in
the case of any such amendment, only to the extent that such amendment permits
the Corporation to provide broader indemnification rights than said law
permitted the Corporation to provide prior to such amendment), against all
expenses (including attorneys' fees),
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judgments, fines and amounts paid in settlement actually and reasonably incurred
by him in connection therewith; provided, however, that the Corporation shall
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indemnify any such person seeking indemnification in connection with a
proceeding (or part thereof) that was initiated by such person only if such
proceeding (or part thereof) was authorized or ratified by the Board. The right
to indemnification conferred in this Section 6.01 shall be a contract right.
For purposes of this Section 6.01, reference to the "Corporation" shall
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include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, fiduciaries and agents so that
any person who is or was a director, officer, fiduciary or agent of such
constituent corporation, or is or was serving at the request of such constituent
corporation as a director, officer, fiduciary or agent of another corporation,
partnership, joint venture, trust or other enterprise, including service with
respect to employee benefit plans, shall stand in the same position under the
provisions of this Section 6.01, with respect to the resulting or surviving
corporation as he would have with respect to such constituent corporation if its
separate existence had continued.
SECTION 6.02. PROCEDURE FOR INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Any indemnification of a director or officer of the Corporation under
Section 6.01 above or advance of expenses under Section 6.03 below shall be made
promptly, and in any event within thirty (30) days, upon the written request of
the director or officer subject to the following provisions. If a determination
by the Board that the director or officer is entitled to indemnification
pursuant to this Article 6 is required, and the Corporation fails to respond
within sixty (60) days to a written request for indemnity, the Corporation shall
be deemed to have approved the request. If the Corporation denies a written
request for indemnification or advancing of expenses, in whole or in part, or if
payment in full pursuant to such request is not made within thirty (30) days,
the right to indemnification or advances as granted by this Article 6 shall be
enforceable by the director or officer in any court of competent jurisdiction.
Such person's costs and expenses incurred in connection with successfully
establishing his or her right to indemnification, in whole or in part, in any
such action shall also be indemnified by the Corporation. It shall be a defense
to any such action (other than an action brought to enforce a claim for expenses
incurred in defending any proceeding in advance of its final disposition where
the required undertaking, if any, has been tendered to the Corporation) that the
claimant has not met the standards of conduct which make it permissible under
the Act for the Corporation to indemnify the claimant for the amount claimed,
but the burden of such defense shall be on the Corporation. Neither the failure
of the Corporation (including the Board, independent legal counsel or its
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 has met the applicable standard of conduct set forth in the Act, nor
an actual determination by the Corporation (including the Board, independent
legal counsel, or its stockholders) that the claimant has not met such
applicable standard of conduct, shall be a defense to the action or create a
presumption that the claimant has not met the applicable standard of conduct.
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SECTION 6.03. PAYMENT OF EXPENSES IN ADVANCE.
Expenses (including attorneys' fees) incurred by any person described
in Section 6.01 in defending an action, suit or proceeding referred to in
Section 6.01 above may be paid by the Corporation in advance of the final
disposition of such action, suit or proceeding as authorized by the Board in the
specific case upon receipt of an undertaking by or on behalf of the director or
officer to repay such amount if it shall ultimately be determined that he or she
is not entitled to be indemnified by the Corporation as authorized in Section
6.01.
SECTION 6.04. INDEMNIFICATION NOT EXCLUSIVE.
The indemnification and right to payment of expenses in advance of
final disposition provided for under this Article 6 shall not be deemed
exclusive of (i) any other rights to which those seeking indemnification may be
entitled under any bylaw, any agreement, any insurance purchased by the
Corporation, vote of stockholders or disinterested directors or otherwise, both
as to action in his or her official capacity and as to action in another
capacity while holding such office or (ii) the power of the Corporation to
indemnify any person who is or was an employee or agent of the Corporation or of
another corporation, joint venture, trust or enterprise that he is serving or
has served at the request of the Corporation, to the same extent and in the same
situations and subject to the same determinations with respect to directors and
officers.
SECTION 6.05. OTHER.
Any repeal or modification of this Article 6 by the stockholders of the
Corporation shall be prospective only, and shall not adversely affect the
indemnification of any officer or director of the Corporation existing at the
time of such repeal or modification.
SECTION 6.06. INDEMNIFICATION AGREEMENTS.
The Corporation may enter into indemnification agreements with its
officers and Directors.
SECTION 6.07. 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 another corporation, partnership, joint venture, trust or
other enterprise against any liability asserted against him and incurred by him
in any such capacity, or arising out of his status as such and which insurance
coverage may extend indemnification protection that is broader and more
comprehensive than the indemnification benefits granted under this Article.
SECTION 6.08. CONTINUED COVERAGE.
Unless otherwise provided herein, the indemnification extended to a
person that has qualified for indemnification under the provisions of this
Article shall not be terminated when
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the person has ceased to be a director, officer, employee or agent for all
causes of action against the indemnified party based on acts and events
occurring prior to the termination of the relationship with the Corporation and
shall inure to the benefit of the heirs, executors and administrators of such
person.
ARTICLE 7- AMENDMENTS
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In furtherance and not in limitation of the powers conferred by
statute, the Board is expressly authorized to adopt, amend or repeal these
Bylaws by a majority vote at any regular or special meeting of the Board or by
written consent, subject to the power of the stockholders of the Corporation to
amend or repeal any Bylaw whether adopted by the Board or the stockholders.
ARTICLE 8- CONFLICT OF TERMS
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Except as otherwise explicitly provided in these Bylaws, if any
provision contained in these Bylaws is in conflict with, inconsistent with, or
imposes greater obligations or burdens than any provision in the Certificate of
Incorporation, the provision contained in the Certificate of Incorporation shall
govern and control to the extent of such conflict, inconsistency or obligation
or burden.
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