Exhibit 3.2
Amended and Restated
as of March 24, 1999
BYLAWS
OF
CONSOLIDATED FREIGHTWAYS CORPORATION
INCORPORATED UNDER THE LAWS OF DELAWARE
TABLE OF CONTENTS
BYLAWS
OF
CONSOLIDATED FREIGHTWAYS CORPORATION
ARTICLE I:
LOCATION AND OFFICES
SECTION 1:1. Principal Office 1
SECTION 1:2. Other Offices 1
ARTICLE II:
STOCKHOLDERS
SECTION 2:1. Annual Meeting 1
SECTION 2:2. Business to be Conducted
at Annual Meeting 2
SECTION 2:3. Special Meetings 3
SECTION 2:4. Place of Meetings 3
SECTION 2:5. Notice of Meetings 3
SECTION 2:6. Rules of Conduct 4
SECTION 2.7. Quorum and Voting 4
SECTION 2:8. Voting; Proxy 5
SECTION 2:9. Voting by Fiduciaries, Pledgees and
Pledgors 6
SECTION 2:10. Nomination of Directors 6
SECTION 2:11. List of Stockholders 7
ARTICLE III:
DIRECTORS
SECTION 3:1. General Powers 8
SECTION 3:2. Number and Qualifications 8
SECTION 3:3. Election; Resignation 8
SECTION 3:4. Meetings 9
SECTION 3:5. Quorum 9
SECTION 3:6. Committees 9
SECTION 3:7. Waiver of Notice 10
SECTION 3:8. Consent 10
SECTION 3:9. Notice to Members of the Board 10
SECTION 3:10. Presiding Officer 11
SECTION 3:11. Compensation 11
SECTION 3:12. Interested Directors 11
ARTICLE IV:
OFFICERS
SECTION 4:1. Appointment 12
SECTION 4:2. Tenure 12
SECTION 4:3. Salaries 12
SECTION 4:4. Chairman of the Board 12
SECTION 4:5. President 13
SECTION 4:6. Vice Presidents 13
SECTION 4:7. Secretary 14
SECTION 4:8. Treasurer 14
SECTION 4:9. Other Officers 15
ARTICLE V:
CAPITAL STOCK AND DIVIDENDS
SECTION 5:1. Certificates for Shares 15
SECTION 5:2. Transfers 15
SECTION 5:3. Regulations Governing Issuance and
Transfers of Shares 16
SECTION 5:4. Transfer Agents and Registrars 16
SECTION 5:5. Lost or Destroyed Certificates 16
SECTION 5:6. Fractions of Shares 16
SECTION 5:7. Determination of Stockholders 17
SECTION 5:8. Record Date 17
ARTICLE VI:
OTHER SECURITIES OF THE CORPORATION 17
ARTICLE VII:
INDEMNIFICATION
SECTION 7:1. General Indemnification 18
SECTION 7:2. Insurance, Indemnification
Agreements and Other Matters 18
SECTION 7:3. Nonexclusivity 19
ARTICLE VIII:
MISCELLANEOUS
SECTION 8:1. Voting Shares in Other Corporations 19
SECTION 8:2. Execution of Other Papers and Documents 19
SECTION 8:3. Corporate Seal 20
SECTION 8:4. Books and Records 20
SECTION 8:5. Fiscal Year 20
SECTION 8:6. Amendments 20
AMENDED AND RESTATED
BYLAWS
OF
CONSOLIDATED FREIGHTWAYS CORPORATION
ARTICLE I: LOCATION AND OFFICES
Principal Office.
SECTION 1:1. The principal office of Consolidated
Freightways Corporation (the "Corporation") shall be at
such place as the Board of Directors of the Corporation
(the "Board") may from time to time determine, but until
a change is effected such principal office shall be at
175 Linfield Drive in the City of Menlo Park, California.
Other Offices.
SECTION 1:2. The Corporation may also have other
offices, in such places (within or without the State of
Delaware) as the Board may from time to time determine.
ARTICLE II: STOCKHOLDERS
Annual Meeting.
SECTION 2:1. An annual meeting of the stockholders
of the Corporation shall be held at 10:00 o'clock a.m. on
the last Monday of April of each year, beginning in 1997,
if not a legal holiday, and if a legal holiday then on
the next succeeding day not a legal holiday or on such
other date as shall be designated from time to time by
the Board. The purpose of the meeting shall be to elect
directors and to transact such other business as properly
may be brought before the meeting. If the Corporation
shall fail to hold said meeting for the election of
directors on the date aforesaid, the Board shall cause
the election to be held by the stockholders as soon
thereafter as convenient.
Business to be Conducted at Annual Meeting.
SECTION 2:2.1 At an annual meeting of stockholders,
only such business shall be conducted as shall have been
brought before the meeting (i) pursuant to the
Corporation's notice of the meeting, (ii) by or at the
direction of the Board (or any duly organized committee
thereof), or (iii) by any stockholder of the Corporation
who is a stockholder of record on the date of giving of
the notice provided for in this Section 2:2 and on the
record date for the determination of stockholders
entitled to vote at such meeting and who has complied
with the notice procedures set forth in this Section 2:2.
SECTION 2:2.2 In addition to any other applicable
requirements, for business to be properly brought before
an annual meeting by a stockholder, such stockholder must
have given timely notice in proper written form to the
Secretary which notice is not withdrawn by such stock-
holder at or prior to such annual meeting.
SECTION 2:2.3 To be timely, a stockholder's notice
to the Secretary must be delivered or mailed to and
received by the Secretary at the principal executive
offices of the Corporation no later than the close of
business on the forty-fifth (45th) day nor earlier than
the close of business on the seventy-fifth (75th) day
prior to the fist anniversary date of the date on which
the Corporation first mailed proxy materials for the
preceding year's annual meeting of stockholders;
provided, however, that in the event that the annual
meeting is called for a date that is not within thirty
days before or after the anniversary date of the
preceding year's annual meeting, notice by the
stockholder to be timely must be so received not later
than the close of business on the later of the ninetieth
(90th) day prior to such annual meeting or tenth day
following the day on which such notice of the date of the
annual meeting was mailed or such public disclosure of
the date of the annual meeting was made, whichever occurs
first. "Public disclosure" shall mean disclosure in a
press release reported to a national news service or in a
document publicly filed with the Securities and Exchange
Commission.
SECTION 2:2.4 To be in proper written form, such
stockholder's notice must set forth as to each matter the
stockholder proposes to bring before the annual meeting
(i) a brief description of the business desired to be
brought before the annual meeting and the reasons for
conducting such business at such meeting; (ii) the name
and address, as they appear on the Corporation's books,
of the stockholder proposing such business, and the name
and address of the beneficial owner, if any, on whose
behalf the proposal is made; (iii) the class, series and
the number of shares of the Corporation's stock which are
beneficially owned by such stockholder, the beneficial
owner, if any, on whose behalf the proposal is made; (iv)
a description of all arrangements or understandings
between such stockholder or beneficial owner and any
other person or persons (including their names) in
connection with the proposal of such business by such
stockholder or beneficial owner and any material interest
of the stockholder, and of the beneficial owner, if any,
on whose behalf the proposal is made, in such business;
(v) whether either such stockholder or beneficial owner
intends to deliver a proxy statement and form of proxy to
holders of at least the percentage of the Corporation's
voting shares required under applicable law to carry the
proposal, and (vi) a representation that such stockholder
or beneficial owner intends to appear in person or by
proxy at the annual meeting to being such business before
the meeting. Notwithstanding the foregoing provisions to
include information with respect to a stockholder
proposal in the proxy statement and form of proxy for a
stockholder's meeting, stockholders must provide notice
as required by the regulations under the 1934 Act.
Nothing in these by-laws shall be deemed to affect any
rights of stockholders to request inclusion of proposals
in the Corporation's proxy statement pursuant to Rule 14a-
8 under the 1934 Act.
SECTION 2:2.5 Notwithstanding anything in these
Bylaws to the contrary, no business shall be conducted at
an annual meeting except in accordance with the proce
dures set forth in this Section 2:2. The chairman of the
meeting may, if the facts warrant, determine that the
business was not properly brought before the meeting in
accordance with the provisions of this Section 2:2; and
if the chairman should so determine, the chairman shall
so declare to the meeting, and any such business not
properly brought before the meeting shall not be
transacted.
Special Meetings.
SECTION 2:3. Special meetings of stockholders of
the Corporation for any purpose or purposes may be called
at any time by the Chairman of the Board, the Chief
Executive Officer or a majority of the entire Board.
Special meetings of the stockholders of the Corporation
may not be called by any other person or persons.
Written notice of a special meeting stating the place,
date and hour of the meeting and the purpose or purposes
for which the meeting is called shall be given to each
stockholder entitled to vote at such meeting as provided
in Section 2:5, and only such business as is stated in
such notice shall be acted upon thereat.
Place of Meetings.
SECTION 2:4. All meetings of the stockholders shall
be held at the principal office of the Corporation, or at
such other place, within or without the State of
Delaware, as may be determined by the Board and stated in
the notice of the meeting.
Notice of Meetings.
SECTION 2:5. Written notice of each meeting of the
stockholders stating the place, date, and hour of the
meeting, and, in case of a special meeting or where
otherwise required by statute, the purpose or purposes
for which the meeting is called, shall be delivered by
mail not less than ten nor more than sixty days before
the date of the meeting, by or at the direction of the
person calling the meeting, to each stockholder entitled
to vote at such meeting. The notice of a stockholders'
meeting shall be deemed to be delivered when deposited in
the United States mail with postage prepaid, addressed to
each stockholder at such stockholder's address as it
appears on the records of the Corporation.
Rules of Conduct.
SECTION 2:6. The Board of the Corporation shall be
entitled to make such rules or regulations for the
conduct of meetings of stockholders as it shall deem
necessary, appropriate or convenient. Subject to such
rules and regulations of the Board, if any, the chairman
of the meeting shall have the right and authority to
prescribe such rules, regulations and procedures and to
do all such acts as, in the judgment of such chairman,
are necessary, appropriate or convenient for the proper
conduct of the meeting, including, without limitation,
establishing an agenda or order of business for the
meeting, rules and procedures for maintaining order at
the meeting and the safety of those present, limitations
on participation in such meeting to stockholders of
record of the Corporation and their duly authorized and
constituted proxies, and such other persons as the
chairman shall permit, restrictions on entry to the
meeting after the time fixed for the commencement
thereof, limitations on the time allotted to questions or
comments by participants and regulation of the opening
and closing of the polls for balloting on matters which
are to be voted on by ballot. Unless, and to the extent,
determined by the Board or the chairman of the meeting,
meeting of stockholders shall not be required to be held
in accordance with rules of parliamentary procedure.
Quorum and Voting.
SECTION 2:7.1 The holders of a majority of the
outstanding shares (exclusive of treasury stock) entitled
to vote at any meeting of the stockholders, when present
in person or by proxy, shall constitute a quorum for the
transaction of business, except as otherwise provided by
statute, the Certificate of Incorporation of the
Corporation or these Bylaws; but in the absence of such a
quorum the holders of a majority of the shares
represented at the meeting shall have the right succes-
sively to adjourn the meeting to a specified date. When
a meeting is adjourned to another time or place, notice
need not be given of the adjourned meeting if the time
and place thereof are announced at the meeting at which
the adjournment is taken. At the adjourned meeting the
Corporation may transact any business which might have
been transacted at the original meeting. If the
adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given
to each stockholder of record entitled to vote at the
meeting.
SECTION 2:7.2 The absence from any meeting of the
number of shares required by statute, the Certificate of
Incorporation of the Corporation or these Bylaws for
action upon one matter shall not prevent action at such
meeting upon any other matter or matters which may
properly come before the meeting, if the number of shares
required in respect of such other matters shall be
present.
SECTION 2:7.3 When a quorum is present at any meet
ing of the stockholders, the vote of the holders (present
in person or represented by proxy) of a majority of the
shares of stock which are actually voted (and have the
power to vote) on any proposition or question properly
brought to a vote at such meeting shall decide any such
proposition or question, unless the proposition or ques-
tion is one upon which by express provision of statute or
of the Certificate of Incorporation, or of these Bylaws,
a different vote is required, in which case such express
provision shall govern and establish the number of votes
required to determine such proposition or question.
Voting; Proxy.
SECTION 2:8.1 Whenever the law requires or the
chairman of the meeting orders that a vote be taken by
ballot, each stockholder entitled to vote on a particular
question at a meeting of stockholders, pursuant to law or
the Certificate of Incorporation, shall be entitled to
one vote for each share of voting stock held by such
stockholder. Shares standing in the names of two or more
persons shall be voted or represented in accordance with
the determination of the majority of such persons, or, if
only one of such persons is present in person or
represented by proxy, such person shall have the right to
vote such shares and such shares shall be deemed to be
represented for the purpose of determining a quorum. The
date for determining the stockholders entitled to vote at
a meeting of the stockholders shall be determined pursu-
ant to Section 5:8.
SECTION 2:8.2 Each stockholder entitled to vote at
a meeting of stockholders may authorize another person or
persons to act for such stockholder by proxy; but no such
proxy shall be voted or acted upon after three years from
its date, unless the proxy provides for a longer period.
A duly executed proxy shall be irrevocable if it states
that it is irrevocable and if, and only as long as, it is
coupled with an interest sufficient in law to support an
irrevocable power. A proxy may be made irrevocable
regardless of whether the interest with which it is
coupled is an interest in the stock itself or an interest
in the Corporation generally.
Voting by Fiduciaries, Pledgees and Pledgors.
SECTION 2:9. Persons holding stock in a fiduciary
capacity shall be entitled to vote the shares so held.
Persons whose stock is pledged shall be entitled to vote,
unless in the transfer by the pledgor on the books of the
Corporation the pledgor has expressly empowered the
pledgee to vote thereon, in which case only the pledgee
or the pledgee's proxy may represent such stock and vote
thereon.
Nomination of Directors.
SECTION 2:10.1 Only persons who are nominated in
accordance with the following procedures shall be eligi-
ble for election as directors of the Corporation, except
as may be otherwise expressly provided in the Certificate
of Incorporation of the Corporation with respect to the
right of holders of preferred stock of the Corporation to
nominate and elect a specified number of directors in
certain circumstances. Nominations of persons for elec-
tion to the Board may be made at any annual meeting of
stockholders, (i) by or at the direction of the Board (or
any duly authorized committee thereof) or (ii) by any
stockholder of the Corporation who is a stockholder of
record on the date of the giving of the notice provided
for in this Section 2:10 and on the record date for the
determination of stockholders entitled to vote at such
meeting and who complies with the notice procedures set
forth in this Section 2:10.
SECTION 2:10.2 In addition to any other applicable
requirements, for a nomination to be made by a stockhold-
er, such stockholder must have given timely notice there
of in proper written form to the Secretary of the
Corporation.
SECTION 2:10.3 To be timely, a stockholder's notice
to the Secretary must be delivered or mailed to and
received by the Secretary at the principal executive
offices of the Corporation no later than the close of
business on the forty-fifth (45th) day nor earlier than
the close of business on the seventy-fifth (75th) day
prior to the fist anniversary date of the date on which
the Corporation first mailed proxy materials for the
preceding year's annual meeting of stockholders;
provided, however, that in the event that the annual
meeting is called for a date that is not within thirty
days before or after the anniversary date of the
preceding year's annual meeting, notice by the
stockholder to be timely must be so received not later
than the close of business on the later of the ninetieth
(90th) day prior to such annual meeting or tenth day
following the day on which such notice of the date of the
annual meeting was mailed or such public disclosure of
the date of the annual meeting was made, whichever occurs
first. "Public disclosure" shall mean disclosure in a
press release reported to a national news service or in a
document publicly filed with the Securities and Exchange
Commission.
SECTION 2:10.4 To be in proper written form, a
stockholder's notice to the Secretary must set forth (i)
as to each person whom the stockholder proposes to
nominate for election as a director (A) the name, age,
business address and residence address of the person, (B)
the principal occupation or employment of the person, (C)
the class, series and the number of share of capital
stock of the Corporation which are owned beneficially or
of record by the person and (D) any other information
relating to the person that would be required to be
disclosed in a proxy statement or other filings required
to be made in connection with solicitations of proxies
for election of directors in an election contest or is
otherwise required pursuant to Section 14 of the
Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and the rules and regulations
promulgated thereunder; and (ii) as to the stockholder
giving the notice or the beneficial owner on whose behalf
the nomination is made, (A) the name and address of such
stockholder as they appear on the Corporation's books,
(B) the class or series and the number of shares of the
Corporation's stock which are beneficially owned by such
stockholder and beneficial owner, (C) a description of
all arrangements or understandings between such
stockholder or beneficial owner and each proposed nominee
and any other person or persons (including their names)
pursuant to which the nomination(s) are to be made by
such stockholder or beneficial owner, (D) a
representation that such stockholder or beneficial owner
intends to appear in person or by proxy at the meeting to
nominate the persons named in its notice, (E) whether
either such stockholder or beneficial owner intends to
deliver a proxy statement and form of proxy to holders of
a sufficient number of the Corporation's voting shares to
elect such nominee or nominees, and (F) any other
information relating to such stockholder or beneficial
owner that would be required to be disclosed in a proxy
statement or other filings required to be made in
connection with solicitations of proxies for election of
directors pursuant to Section 14 of the Exchange Act and
the rules and regulations promulgated thereunder. Such
notice must be accompanied by a written consent of each
proposed nominee to being named as a nominee and to serve
as a director if elected.
SECTION 2:10.5 No person shall be eligible for
election as a director of the Corporation unless
nominated in accordance with the procedures set forth in
this Section 2:10. If the chairman of the meeting
determines that a nomination was not made in accordance
with the foregoing procedures, the chairman shall declare
to the meeting that the nomination was defective and such
defective nomination shall be disregarded.
List of Stockholders.
SECTION 2:11. The Secretary shall prepare and make,
at least ten days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the
address of each stockholder and the number of shares
registered in the name of each stockholder. Such list
shall be open to the examination of any stockholder, for
any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten days prior
to the meeting, either at a place within the city where
the meeting is to be held, which place shall be specified
in the notice of the meeting, or, if not so specified, at
the place where the meeting is to be held. The list
shall also be produced and kept at the time and place of
the meeting during the whole time thereof, and may be
inspected by any stockholder who is present. The stock
ledger shall be the only evidence as to who are the
stockholders entitled to examine the stock ledger, the
list required by this Section 2:11 or the books of the
Corporation, or to vote in person or by proxy at any
meeting of stockholders.
ARTICLE III: DIRECTORS
General Powers.
SECTION 3:1. The Board shall control and manage the
business and property of the Corporation. The Board may
exercise all such powers of the Corporation and do all
lawful acts and things as are not by law, the Certificate
of Incorporation or these Bylaws directed or required to
be exercised or done by the stockholders or some
particular officer of the Corporation.
Number and Qualifications.
SECTION 3:2. The number of directors shall be
determined from time to time by resolution of the Board
in accordance with the terms of Article FIFTH of the
Certificate of Incorporation.
Election; Resignation.
SECTION 3:3. Except as provided in the Certificate
of Incorporation with respect to the filling of
vacancies, directors shall be elected by a plurality of
the votes cast at annual meetings of stockholders, and
shall hold office until the annual meeting for the year
in which his term expires and until his successor shall
be elected and shall qualify, subject, however, to prior
death, resignation, retirement, disqualification or
removal from office. Any director may resign at any time
upon written notice to the Secretary, such resignation to
specify whether it will be effective at a particular
time, upon receipt by the Secretary or at the pleasure of
the Board. If no such specification is made, it shall be
deemed effective at the pleasure of the Board. Directors
need not be stockholders. The directors who are to be
elected at the annual meeting of the stockholders shall
be elected by ballot by the holders of shares entitled to
vote.
Meetings.
SECTION 3:4.1. The Board of the Corporation may
hold meetings, both regular and special, either within or
without the State of Delaware. Regular meetings of the
Board may be held without notice at such time and at such
place as may from time to time be determined by the
Board. Special meetings of the Board may be called by the
Chairman, if there be one, the President or any director.
Notice thereof stating the place, date and hour of the
meeting shall be given to each director either by mail
not less than forty-eight (48) hours before the date of
the meeting, by telephone or facsimile transmission on
twenty-four (24) hours' notice, or on such shorter notice
as the person or persons calling such meeting may deem
necessary or appropriate in the circumstances.
SECTION 3:4.1. Members of the Board, or any
committee designated by the Board, 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 participating in the
meeting in this manner shall constitute presence in
person at such meeting.
Quorum.
SECTION 3:5. Except as may be otherwise
specifically provided by law, the Certificate of Incorpo
ration or these Bylaws, at all meetings of the Board, a
majority of the entire Board 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. 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.
Committees.
SECTION 3:6. The Board shall have the following
committees: a Compensation Committee and an Audit
Committee. The Board may, by resolution passed by a
majority of the entire Board, designate one or more
additional committees. Each committee shall consist of
three or more of the directors of the Corporation. The
Board may designate one or more directors as alternate
members of any committee, who may replace any absent or
disqualified member at any meeting of any such committee.
In the absence or disqualification of a member of a
committee, and in the absence of a designation by the
Board of an alternate member to replace the absent or
disqualified member, the member or members thereof
present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board to act at
the meeting in the place of any absent or disqualified
member. Any committee, to the extent allowed by law and
provided in the resolution establishing such committee,
shall have and may exercise all the powers and authority
of the Board in the management of the business and
affairs of the Corporation. Each committee shall keep
regular minutes and report to the Board when required.
Waiver of Notice.
SECTION 3:7. Any notice which is required by law or
by the Certificate of Incorporation or by these Bylaws to
be given to any director may be waived in writing, signed
by such director, whether before or after the time stated
therein. Attendance of a director at any meeting shall
constitute waiver of notice of such meeting, except where
a director attends a meeting for the express purpose of
objecting to the transaction of any business because the
meeting is not lawfully called or convened.
Consent.
SECTION 3:8. 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) consent thereto in writing, and
the writing or writings are filed with the minutes of the
proceedings of the Board (or committee).
Notice to Members of the Board.
SECTION 3:9. Each member of the Board shall file
with the Secretary of the Corporation an address to which
mail, by hand deliveries or overnight commercial courier
deliveries may be transmitted and, if appropriate, a
telephone number to which facsimile notices may be
transmitted. A notice mailed, delivered by hand or by
overnight commercial courier (receipt requested) or trans-
mitted by facsimile (with confirmation receipt) in accor
dance with the instructions provided by the director
shall be deemed sufficient notice. Such address or
telephone number may be changed at any time and from time
to time by a director by giving written notice of such
change to the Secretary. Failure on the part of any
director to keep an address and, if applicable, telephone
number on file with the Secretary shall automatically
constitute a waiver of notice of any regular or special
meeting of the Board which might be held during the
period of time that such address and telephone number, if
applicable, are not on file with the Secretary. A notice
shall be deemed to be mailed when deposited in the United
States mail, postage prepaid. A notice shall be deemed
to be delivered by hand or by overnight commercial
courier or by facsimile transmission when sent to the
address or telephone number, as the case may be, which
the director has placed on file with the Secretary, and
in the case of facsimile transmission, when a
confirmation receipt is received.
Presiding Officer.
SECTION 3:10. The Chairman of the Board shall
preside at all meetings of the Board at which the
Chairman is present. In the absence of the Chairman, the
Board shall select a chairman of the meeting from among
the directors present.
Compensation.
SECTION 3:11. The directors may be paid their
expenses, if any, of attendance at each meeting of the
Board and may be paid a fixed sum for attendance at each
meeting of the Board or a stated retainer as director.
No such payment shall preclude any director from serving
the Corporation in any other capacity and receiving
compensation therefor. Members of special or standing
committees may be allowed like compensation for attending
committee meetings.
Interested Directors.
SECTION 3:12. No contract or transaction between
the Corporation and one or more of its directors or
officers, or between the Corporation and any other
Corporation, partnership, association, or other
organization in which one or more of its directors or officers
are directors or officers, or have a financial interest,
shall be void or voidable solely for this reason, or
solely because the director or officer is present at or
participates in the meeting of the Board or committee
thereof which authorizes the contract or transaction, or
solely because his or their votes are counted for such
purpose if (i) 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
the committee, and the Board or committee in good faith
authorizes the contract or transaction by the affirmative
votes of a majority of the disinterested directors, even
though the disinterested directors be less than a quorum;
or (ii) the material facts as to his or their relation-
ship or interest and as to the contract or transaction
are disclosed or are known to the stockholders entitled
to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stock-
holders; or (iii) the contract or transaction is fair as
to the Corporation as of the time it is authorized,
approved or ratified, by the Board, a committee thereof
or the stockholders. Common or interested directors may
be counted in determining the presence of a quorum at a
meeting of the Board or of a committee which authorizes
the contract or transaction.
ARTICLE IV: OFFICERS
Appointment.
SECTION 4:1. At the annual meeting of the Board
following their election by the stockholders, the
directors shall elect from its membership a Chairman of
the Board and a President. The Board shall elect such
Vice Presidents, a Secretary, a Treasurer, Assistant
Secretaries, Assistant Treasurers and such other
officers, as the Board may from time to time deem
necessary or appropriate.
Tenure.
SECTION 4:2. Officers appointed by the Board shall
hold their respective offices for such terms and shall
exercise such powers and perform such duties as shall be
determined from time to time by the Board; and all offi-
cers of the Corporation shall hold office until their
successors are chosen and qualified, subject, however, to
prior death, resignation, retirement, disqualification or
removal from office. Any officer appointed by the Board
may be removed by the Board with or without a hearing and
with or without cause whenever in its judgment the best
interests of the Corporation will be served thereby.
Salaries.
SECTION 4:3. The salaries of all officers of the
Corporation shall be fixed by the Board (or any committee
thereof established for such purpose).
Chairman of the Board.
SECTION 4:4. The Chairman of the Board, if there be
one, shall preside at all meetings of the stockholders
and of the Board. Either the Chairman of the Board or
the President shall be the Chief Executive Officer of the
Corporation, and except where by law the signature of the
President is required, the Chairman of the Board shall
possess the same power as the President to sign
certificates for the stock of the Corporation, with the
Secretary (or any Assistant Secretary) or Treasurer (or
any Assistant Treasurer), and all bonds, mortgages,
contracts, and other instruments of the Corporation which
may be authorized by the Board or by such Chairman of the
Board or by the President except where required or
permitted by law to be otherwise signed and executed and
except that the other officers of the Corporation may
sign and execute documents when so authorized by these
Bylaws, the Board, the Chairman of the Board or the
President. During the absence or disability of the
President, the Chairman of the Board shall exercise all
the powers and discharge all the duties of the President.
President.
SECTION 4:5. The President shall have general
supervision of the business of the corporation and shall
see that all orders and resolutions of the Board or the
Chairman of the Board are carried into effect. The
President may sign certificates for the stock of the
Corporation, with the Secretary (or any Assistant
Secretary) or Treasurer (or any Assistant Treasurer) and
execute all deeds, bonds, mortgages, contracts and other
instruments of the Corporation authorized by the Board,
by the Chairman of the Board or by such President, except
where required or permitted by law to be otherwise signed
and executed and except that the other officers of the
Corporation may sign and execute documents when so
authorized by these Bylaws, the Board, the Chairman of the
Board or the President. In the absence or disability of
the Chairman of the Board, or if there be none, the
President shall preside at all meetings of the
stockholders and the Board.
Vice Presidents.
SECTION 4:6. Each Vice President shall have such
powers, duties and designations as the Board (or any
committee thereof established for such purpose) assigns
to such Vice President. In the absence or disability of
the President and the Chairman of the Board, the Vice
Presidents, in the order designated by the Board, shall
perform the duties of the President, and when so acting,
shall have all the powers of and be subject to all the
restrictions upon the President. Any Vice President may
also sign certificates for the stock of the Corporation,
with the Secretary (or any Assistant Secretary) or
Treasurer (or any Assistant Treasurer), and, when so
authorized by these Bylaws, the Board, the Chairman of
the Board or the President, may also sign and execute in
the name of the Corporation deeds, mortgages, bonds, con-
tracts or other instruments authorized by the Board, and
shall perform such other duties as from time to time may
be assigned to any Vice President by the Board, the
Chairman of the Board or the President.
Secretary.
SECTION 4:7. The Secretary shall attend all meet
ings of the Board and all meetings of stockholders and
record all the proceedings thereat in a book or books to
be kept for that purpose; the Secretary shall also
perform like duties for the standing committees when re
quired. The Secretary shall give, or cause to be given,
notice of all meetings of the stockholders and special
meetings of the Board, and shall perform such other
duties as may be prescribed by the Board or the Presi-
dent, under whose supervision such Secretary shall be.
If the Secretary shall be unable or shall refuse to cause
to be given notice of all meetings of the stockholders
and special meetings of the Board, and if there be no
Assistant Secretary, then either the Board or the
President may choose another officer to cause such notice
to be given. The Secretary shall have custody of the
seal of the Corporation and the Secretary or any
Assistant Secretary, if there be one, shall have authori-
ty to affix the same to any instrument requiring it and
when so affixed, it may be attested by the signature of
the Secretary, any Assistant Secretary, the Treasurer,
any Assistant Treasurer or other officer. The Board, the
Chairman of the Board or the President may give general
authority to any other officer to affix the seal of the
Corporation and to attest the affixing by such officer's
signature. The Secretary shall see that all books,
reports, statements, certificates and other documents and
records required by law to be kept or filed are properly
kept or filed, as the case may be. In the absence of the
Secretary from any meeting, the minutes shall be recorded
by the person appointed for that purpose by the presiding
officer.
Treasurer.
SECTION 4:8. The Treasurer shall have the custody
of the corporate funds and securities and shall keep full
and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all
moneys and other valuable effects in the name and to the
credit of the Corporation in such depositories as may be
designated by the Board, the Chairman of the Board or the
President. The Treasurer shall disburse the funds of the
Corporation as may be ordered by the Board, taking proper
vouchers for such disbursements, and shall render to the
President and the Board at its regular meetings, or when
the Board so requires, an account of all transactions as
Treasurer and of the financial condition of the
Corporation. If required by the Board, the Treasurer
shall give the Corporation a bond in such sum and with
such surety or sureties as shall be satisfactory to the
Board for the faithful performance of the duties of the
office and for the restoration to the Corporation, in
case of the Treasurer's death, resignation, retirement or
removal from office, of all books, papers, vouchers,
money and other property of whatever kind in his posses-
sion or under his control belonging to the Corporation.
Other Officers.
SECTION 4:9. In accordance with Section 4:1, such
other officers as the Board may choose shall perform such
duties and have such powers as from time to time may be
assigned to them by the Board. The Board may delegate to
any other officer of the Corporation the power to choose
such other officers and to prescribe their respective
duties and powers.
ARTICLE V: CAPITAL STOCK AND DIVIDENDS
Certificates for Shares.
SECTION 5:1. Every holder of stock in the
Corporation shall be entitled to have a certificate
signed, in the name of the Corporation (i) by the
Chairman of the Board, the President or a Vice President
and (ii) by the Treasurer or an Assistant Treasurer, or
the Secretary or an Assistant Secretary of the
Corporation, certifying the number of shares owned by him
in the Corporation. Any or all of the signatures on a
certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose
facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent or
registrar before such certificate is issued, it may be
issued by the Corporation with the same effect as if he
were such officer, transfer agent or registrar at the
date of issue.
Transfers.
SECTION 5:2. Certificates representing shares of
stock of the Corporation shall be transferable only on
the books of the Corporation by the person or persons
named in the certificate or by the attorney lawfully
constituted in writing representing such person or per-
sons and upon surrender of the certificate or certifi
cates being transferred which certificate shall be proper-
ly endorsed for transfer or accompanied by a duly
executed stock power. Whenever a certificate is endorsed
by or accompanied by a stock power executed by someone
other than the person or persons named in the certifi-
cate, evidence of authority to transfer shall also be
submitted with the certificate. All certificates surren-
dered to the Corporation for transfer shall be cancelled.
Regulations Governing Issuance and Transfers of Shares.
SECTION 5:3. The Board shall have the power and
authority to make all such rules and regulations as it
shall deem expedient concerning the issue, transfer and
registration of certificates for shares of stock of the
Corporation.
Transfer Agents and Registrars.
SECTION 5:4. Transfer agents and registrars for the
Corporation's stock shall be banks, trust companies or
other financial institutions located within or without
the State of Delaware as shall be appointed by the Board,
the Chairman of the Board or the President. The Board
shall define the authority of such transfer agents and
registrars.
Lost or Destroyed Certificates.
SECTION 5:5. Where a certificate for shares of the
Corporation has been lost or destroyed, the Board may
authorize the issuance of a new certificate in lieu
thereof upon satisfactory proof of such loss or
destruction, and upon the giving of an open penalty bond
with surety satisfactory to the Corporation's Treasurer
and General Counsel, if there be one, to protect the
Corporation or any person injured by the issuance of the
new certificate from any liability or expense which it or
they may incur by reason of the original certificate's
remaining outstanding, and upon payment of the
Corporation's reasonable costs incident thereto.
Fractions of Shares.
SECTION 5:6. The Corporation shall not issue
fractions of a share. It shall, however, (1) arrange for
the disposition of fractional interests by those entitled
thereto, and (2) pay in cash the fair value of fractions
of a share as of the time when those entitled to receive
such fractions are determined, or (3) issue scrip or
warrants in registered or bearer form which shall entitle
the holder to receive a certificate for a full share upon
the surrender of such scrip or warrants aggregating a
full share. Scrip or warrants shall not, unless other
wise provided therein, entitle the holder to exercise
voting rights, to receive dividends thereon, or to par-
ticipate in any of the assets of the Corporation in the
event of liquidation. The Board may cause scrip or
warrants to be issued subject to the conditions that the
shares for which scrip or warrants are exchangeable may
be sold by the Corporation and the proceeds thereof
distributed to the holders of scrip or warrants, or
subject to any other conditions which the Board may
impose.
Determination of Stockholders.
SECTION 5:7. The Corporation shall be entitled to
treat the holder of record of any share or shares of
stock as the holder in fact thereof, 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, save as expressly provided by the laws of
the State of Delaware.
Record Date.
SECTION 5:8. 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 or 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 shall not be more than sixty nor less
than ten days before the date of such meeting, nor more
than sixty days prior to any other action. If no record
date is fixed:
(1) The record date for determining stockholders
entitled to notice of or to vote at a meeting of stock
holders shall be at the close of business on the day next
preceding the day on which notice is given, or, if notice
is waived, at the close of business on the day next
preceding the day on which the meeting is held.
(2) The record date for determining stockholders
for any other purpose shall be at the close of business
on the day on which the Board adopts the resolution
relating thereto.
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 new record date for the
adjourned meeting.
ARTICLE VI: OTHER SECURITIES OF THE CORPORATION
All bonds, debentures and other corporate securities
of the Corporation, other than stock certificates, may be
signed (by manual or facsimile signature) by the Chairman
of the Board, the President or any Vice President, or
such other person as may be authorized by the Board, and
the corporate seal impressed thereon or a facsimile of
such seal imprinted thereon and attested (by manual or
facsimile signature) by the signature of the Secretary or
an Assistant Secretary, or the Treasurer or an Assistant
Treasurer, or such other person as may be authorized by
the Board. Interest coupons appertaining to any such
bond, debenture or other corporate security, shall be
signed by the Chairman of the Board, the President, any
Vice President, Treasurer or any Assistant Treasurer of
the Corporation, or such other person as may be
authorized by the Board, or bear imprinted thereon the
facsimile signature such person. In case any person who
shall have signed or attested any bond, debenture or
other corporate security, or whose facsimile signature
shall appear thereon or on any such interest coupon,
shall have ceased to be an officer before the bond,
debenture or other corporate security so signed or
attested shall have been delivered, such bond, debenture
or other corporate security nevertheless may be adopted
by the Corporation and issued and delivered as though the
person who signed the same or whose facsimile signature
shall have been used thereon had not ceased to be such
officer of the Corporation.
ARTICLE VII: INDEMNIFICATION
General Indemnification.
SECTION 7:1. The Corporation shall indemnify to the
fullest extent authorized or permitted by law (as now or
hereafter in effect) any person made, or threatened to be
made, a party to or otherwise involved in any action or
proceeding (whether civil or criminal or otherwise) by
reason of the fact that he, his testator or intestate, is
or was a director or officer of the Corporation or by
reason of the fact that such director or officer, at the
request of the Corporation, is or was serving any other
corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, in any capacity.
Nothing contained herein shall affect any rights to
indemnification to which employees other than directors
and officers may be entitled by law. No amendment or
repeal of this Section 7:1 shall apply to or have any
effect on any right to indemnification provided hereunder
with respect to any acts or omissions occurring prior to
such amendment or repeal.
Insurance, Indemnification Agreements and Other Matters.
SECTION 7:2. The Corporation may purchase and
maintain insurance on behalf of any person who is or was
a director, officer, employee or agent of the Corpora-
tion, or is serving at the request of the Corporation as
a director, officer, employee or agent of another
Corporation, partnership, joint venture, trust, employee
benefit plan 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, whether
or not the Corporation would have the power to indemnify
him against such liability under the provisions of the
law. The Corporation may create a trust fund, grant a
security interest and/or use other means (including,
without limitation, letters of credit, surety bonds
and/or other similar arrangements), as well as enter into
contracts providing for indemnification to the fullest
extent authorized or permitted by law and including as
part thereof any or all of the foregoing, to ensure the
payment of such sums as may become necessary to effect
full indemnification.
Nonexclusivity.
SECTION 7:3. The rights to indemnification
conferred in this Article VII shall not be exclusive of
any other right which any person may have or hereafter
acquire under any statute, the Certificate of
Incorporation of the Corporation, these Bylaws or any
agreement, vote of stockholders or directors or other-
wise.
ARTICLE VIII: MISCELLANEOUS
Voting Shares in Other Corporations.
SECTION 8:1. The Corporation may vote any and all
shares of stock and other securities having voting rights
which may at any time and from time to time be held by it
in any other corporation or corporations and such vote
may be cast either in person or by proxy by such officer
of the Corporation as the Board may appoint or, in
default of such appointment, the Chairman, the President
or a Vice President.
Execution of Other Papers and Documents.
SECTION 8:2. All checks, bills, notes, drafts,
vouchers, warehouse receipts, bonds, mortgages, con-
tracts, registration certificates and all other
instruments, agreements, papers and documents of the
Corporation shall be signed or endorsed for the Corpora-
tion by such of its officers, other employees and agents
as the Board may from time to time determine, or in the
absence of such determination, by the Chairman of the
Board, the President or a Vice President.
Corporate Seal.
SECTION 8:3. The Board shall provide a suitable
seal, containing the name of the Corporation, the year of
its organization and the words "Corporate Seal,
Delaware," which seal shall be in the custody of the
Secretary of the Corporation, and may provide for one or
more duplicates thereof to be kept in the custody of such
other officers of the Corporation as the Board may pre-
scribe.
Books and Records.
SECTION 8:4. Except as the Board may from time to
time direct or as may be required by law, the Corporation
shall keep its books and records at its principal office.
Fiscal Year.
SECTION 8:5. The fiscal year of the Corporation
shall be fixed by resolution of the Board.
Amendments.
SECTION 8:6. These Bylaws may be amended, altered
or repealed, or new Bylaws may be adopted (a) by the
affirmative vote of eighty percent of the outstanding
stock of the Corporation entitled to vote thereon, or (b)
by the affirmative vote of the majority of the Board at
any regular or special meeting; provided that the notice
of such meeting of stockholders or directors, whether
regular or special, shall specify as one of the purposes
thereof the making of such amendment, alteration or
repeal.