EXHIBIT 3.2
NCR CORPORATION
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BYLAWS
AS AMENDED AND RESTATED ON JANUARY 22, 2003
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.
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.
(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.
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 of the Board, and on not less than 48
hours' notice, given in such manner as the Board of Directors or the Chairman of
the Board 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 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 Committee
Section 3. The Board of Directors may elect an Audit Committee
consisting of three or more Directors. The Board of Directors shall appoint one
of the members of the Audit Committee to the office of Chairman of the Audit
Committee. The Chairman and other members of the Audit 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 Committee or in the office of Chairman of the Audit
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 and Governance
Section 5. The Board of Directors may elect a Committee on Directors
and Governance consisting of three or more Directors. The Board of Directors
shall appoint one of the members of the Committee on Directors and Governance to
the office of Chairman of the Committee on Directors and Governance. The
Chairman and other members of the Committee on Directors and Governance 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 and Governance or in the
office of Chairman of the Committee on Directors and Governance 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.
Chairman of the Board / 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.
Section 4. The Chairman of the Executive Committee shall preside at
all meetings of the Executive Committee at which he shall be present. The Board
of Directors shall select a presiding director who, 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 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 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 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.