EXHIBIT 3.2
AMENDED AND RESTATED
BY-LAWS
OF
STILLWATER MINING COMPANY
(a Delaware corporation)
ARTICLE 1
OFFICES
Section 1.1 Registered Office. The registered office of the Corporation
shall be in Wilmington, Delaware.
Section 1.2 Corporate Office. The Corporation may have its office or
offices at such place or places as the board of directors, in its discretion,
may from time to time determine.
ARTICLE 2
MEETINGS OF STOCKHOLDERS
Section 2.1 Time and Place. Any meeting of the stockholders may be held
at such time and such place, either within or without the State of Delaware, as
shall be designated from time to time by resolution of the board of directors or
as shall be stated in a duly authorized notice of the meeting.
Section 2.2 Annual Meeting. The annual meeting of the stockholders
shall be held on the date and at the time fixed, from time to time, by the board
of directors; provided, however, that the first annual meeting shall be held
within thirteen months after the organization of the Corporation, and each
succeeding annual meeting shall be held within thirteen months after the last
preceding annual meeting. The annual meeting shall be for the purpose of
electing a board of directors and transacting such other business as may
properly be brought before the meeting.
Section 2.3 Special Meetings. Special meetings of the stockholders of
the Corporation, for any purpose or purposes, unless otherwise prescribed by law
or by the Restated Certificate of Incorporation, may be called at any time by a
majority of the entire board of directors, the chairman or the president of the
Corporation or by the secretary upon the written request of stockholders owning
at least a majority of the capital stock of the Corporation entitled to vote
generally in the election of directors. Special meetings of the stockholders of
the Corporation may not be called by any other person or persons. Special
meetings may be held at such time and place, within or without the State of
Delaware, as shall be stated in the notice of the meeting. No business may be
transacted at such meeting except that referred to in the notice thereof.
Section 2.4 Notices. Written notice stating the place, date, and hour
of the meeting and, in case of a special meeting, the purpose or purposes for
which the meeting is called, shall be given not less than ten nor more than
sixty days before the date of the meeting, except as otherwise required by the
Delaware General Corporation Law (the "DGCL") or the Restated Certificate of
Incorporation, either personally or by mail, prepaid telegram, telex, cablegram,
or radiogram, to each stockholder of record entitled to vote at such meeting. If
mailed, such notice shall be deemed to be given when deposited in the United
States mail, postage prepaid, addressed to the stockholder at his or her address
as it appears on the stock records of the Corporation. If given personally or
otherwise than by mail, such notice shall be deemed to be given when either
handed to the stockholder or delivered to the stockholder's address as it
appears on the stock records of the Corporation.
Section 2.5 Record Date. In order that the Corporation may determine
the stockholders entitled to notice of or to vote at any meeting, or at any
adjournment of a meeting, of stockholders; or entitled to receive payment of any
dividend or other distribution or allotment of any rights; or entitled to
exercise any rights in respect of any change, conversion, or exchange of stock;
or for the purpose of any other lawful action; the board of directors may fix,
in advance, a record date, which record date shall not precede the date upon
which the resolution fixing the record date is adopted by the board of
directors. The record date for determining the stockholders entitled to notice
of or to vote at any meeting of the stockholders or any adjournment thereof
shall not be more than sixty nor less than ten days before the date of such
meeting. The record date for any other action shall not be more than sixty days
prior to such action. If no record date is fixed, (i) the record date for
determining stockholders entitled to notice of or to vote at any meeting shall
be at the close of business on the day next preceding the day on which notice is
given or, if notice is waived by all stockholders, at the close of business on
the day next preceding the day on which the meeting is held; and (ii) the record
date for determining stockholders for any other purpose shall be at the close of
business on the day on which the board of directors adopts the resolution
relating to such other purpose. 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 of directors may
fix a new record date for the adjourned meeting.
Section 2.6 Notice of Business. Subject to Section 2.3 of these Amended
and Restated Bylaws, at any meeting of the stockholders of the Corporation, only
such proper business shall be conducted as shall have been brought before the
meeting (i) by or at the direction of the board of directors or (ii) by any
stockholder of the Corporation who is a stockholder of record at the time of
giving of the notice provided for in this Section 2.6, who shall be entitled to
vote at such meeting and who complies with the notice procedures set forth in
this Section 2.6. For business to be brought before a meeting of stockholders by
a stockholder, the stockholder shall have given timely notice thereof in writing
to the secretary of the Corporation. To be timely, a stockholder's notice shall
be delivered to or mailed and received at the principal executive office of the
Corporation not less than fifty days nor more than seventy-five days prior to
the meeting; provided,
however, that in the event that less than sixty days' notice or prior public
disclosure of the date of the meeting is given or made to stockholders, notice
by the stockholder to be timely must be so received no later than the close of
business on the tenth day following the day on which such notice of the date of
the meeting was mailed or such public disclosure was made, whichever first
occurs. Such stockholder's notice to the secretary of the Corporation shall set
forth as to each matter the stockholder proposes to bring before the meeting (i)
a brief description of the business desired to be brought before the meeting,
the reasons for conducting such business at the meeting and, in the event that
such business includes a proposal to amend any document, including these Amended
and Restated Bylaws, the language of the proposed amendment, (ii) the name and
address, as they appear on the Corporation's books, of the stockholder proposing
such business, (iii) the class and number of shares of capital stock of the
Corporation which are beneficially owned by such stockholder and (iv) any
material interest of such stockholder in such business. Notwithstanding anything
in these Amended and Restated Bylaws to the contrary, no business to be brought
before a meeting of stockholders by a stockholder shall be conducted at such
meeting of the stockholders except in accordance with the procedures set forth
in this Section 2.6. The chairman of the meeting of stockholders shall, if the
facts warrant, determine and declare to the meeting that business was not
properly brought before the meeting and in accordance with the provisions of
these Amended and Restated Bylaws, and if he should so determine, he shall so
declare to the meeting and any such business not properly brought before the
meeting shall not be transacted. Notwithstanding the foregoing provisions of
this Section 2.6, a stockholder shall also comply with all applicable
requirements of the Securities Exchange Act of 1934, as amended, and the rules
and regulations promulgated thereunder with respect to matters set forth in this
Section 2.6.
Section 2.7 Conduct of Meetings. The board of directors may adopt by
resolution such rules and regulations for the conduct of meetings of
stockholders as it shall deem appropriate. Except to the extent inconsistent
with such rules and regulations as adopted by the board of directors, the
presiding officer of any meeting of stockholders 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 presiding officer, are appropriate for the
proper conduct of the meeting. Such rules, regulations and procedures, whether
adopted by the board of directors or prescribed by the presiding officer of the
meeting, may include, without limitation, the following: (a) the establishment
of an agenda or order of business for the meeting; (b) rules and procedures for
maintaining order at the meeting and the safety of those present; (c)
limitations on attendance at or participation in the meeting to stockholders of
record of the Corporation, theft duly authorized and constituted proxies or such
other persons as the presiding officer of the meeting shall determine; (d)
restrictions on entry to the meeting after the time fixed for the commencement
thereof; and (e) limitations on the time allotted to questions and/or comments
by participants. Unless and to the extent determined by the board of directors
or the presiding officer of the meeting, meetings of stockholders shall not be
required to be held in accordance with the rules of parliamentary procedure.
Section 2.8 Voting List. 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 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 be produced and kept at the place of the meeting during the whole
time thereof and may be inspected by any stockholder who is present.
Section 2.9 Quorum; Adjournment. Except as otherwise required by law,
by the Restated Certificate of Incorporation or by these Amended and Restated
Bylaws, the presence, in person or by proxy, of holders of at least 50% of the
capital stock of the Corporation issued and outstanding and entitled to vote at
the meeting shall constitute a quorum at all meetings of the stockholders for
the transaction of business. In case a quorum shall not be present at any
meeting of stockholders, the presiding officer of the meeting or a majority in
interest of the stockholders entitled to vote thereat, present in person or by
proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present. At any
such adjourned meeting at which a quorum shall be present, any business may be
transacted which might have been transacted at the meeting as originally
noticed; but only those stockholders entitled to vote at the meeting as
originally noticed shall be entitled to vote at any adjournment or adjournments
thereof, provided, however, 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. In addition, the board of directors may adjourn
a meeting of the stockholders if the board of directors determines that
adjournment is necessary or appropriate in order to enable the stockholders (a)
to consider fully information that the board of directors determines has not
been made sufficiently or timely available to stockholders or (b) to otherwise
effectively exercise their voting rights.
Section 2.10 Voting and Proxies. Subject to the provisions of the
Restated Certificate of Incorporation, at every meeting of the stockholders,
each stockholder shall be entitled to one vote, in person or by proxy, for each
share of the capital stock having voting power held by such stockholder, but no
proxy shall be voted on after three years from its date unless the proxy
provides for a longer period. When a quorum is present at any meeting, the vote
of the holders of (i) a plurality of votes cast at the meeting is required for
the election of directors and (ii) a majority of the stock having voting power
present in person or represented by proxy shall decide any question brought
before such meeting, unless the question is one upon which, by express provision
of the DGCL or other law or of the Restated Certificate of Incorporation, a
different vote is required, in which case such express provision shall govern.
Section 2.11 Waiver. Attendance of a stockholder of the Corporation,
either in person or by proxy, at any meeting, whether annual or special, shall
constitute a waiver of
notice of such meeting, except where a stockholder attends a meeting for the
express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened. A written waiver of notice of any such meeting signed by a stockholder
or stockholders entitled to such notice, whether before, at, or after the time
for notice or the time of the meeting, shall be equivalent to notice. Neither
the business to be transacted at, nor the purpose of, any meeting need be
specified in any written waiver of notice.
ARTICLE 3
DIRECTORS
Section 3.1 Number. The number of directors of the Corporation shall
initially be nine (9) and thereafter may be as from time to time fixed by the
board of directors, except as otherwise allowed by, set forth or restricted in
the Restated Certificate of Incorporation or the Stockholders Agreement dated as
of June 23, 2003, by and among Stillwater Mining Company, Norimet Ltd. and MMC
Norilsk Nickel, as the same may be amended from time to time (the "Stockholders
Agreement").
Section 3.2 Elections. Except as provided in the Restated Certificate
of Incorporation or in Section 3.4 of this Article 3, the board of directors
shall be elected at the annual meeting of the stockholders or at a special
meeting called for that purpose. Each director shall hold such office until his
or her successor is elected and qualified or until his or her earlier
resignation or removal.
Section 3.3 Nomination of Directors. Subject to the right to elect
additional directors under specified circumstances which may be granted,
pursuant to the provisions of Article 4 of the Restated Certificate of
Incorporation, to the holders of any class or series of preferred stock,
directors shall be elected by a plurality of the votes cast at annual meetings
of stockholders, and each director so elected shall hold office until his
successor is duly elected and qualified, or until his earlier resignation or
removal. Directors need not be stockholders. Subject to the Stockholders
Agreement, only persons who are nominated in accordance with the following
procedures shall be eligible for election by the stockholders as directors of
the Corporation. Nominations of persons for election as directors of the
Corporation may be made at a meeting of stockholders (a) by or at the direction
of the board of directors, (b) by any nominating committee or persons appointed
by the board of directors or (c) by any stockholder of the Corporation entitled
to vote for the election of directors at the meeting who complies with the
notice procedures set forth in this Section 3.3. Such nominations, other than
those made by or at the direction of the board of directors, shall be made
pursuant to timely notice in writing to the secretary of the Corporation. To be
timely, a stockholder's notice shall be delivered to or mailed and received at
the principal executive office of the Corporation not less than fifty days nor
more than seventy-five days prior to the meeting; provided, however, that in the
event that less than sixty days' notice or prior public disclosure of the date
of the meeting is given or made to stockholders, notice by the stockholder to be
timely must be so received not later than the close of business on the tenth day
following the day on
which such notice of the date of the meeting was mailed or such public
disclosure was made, whichever first occurs. Such stockholder's notice to the
secretary of the Corporation shall set forth (a) as to each person whom the
stockholder proposes to nominate for election or reelection as a director, (i)
the name, age, business address and residence address of the person, (ii) the
principal occupation or employment of the person, (iii) the class and number of
shares of capital stock of the Corporation which are beneficially owned by the
person, and (iv) any other information relating to the person that is required
to be disclosed in solicitations for proxies for election of directors pursuant
to the Securities Exchange Act of 1934, as now or hereafter amended; and (b) as
to the stockholder giving the notice, (i) the name and record address of such
stockholder, and (ii) the class and number of shares of capital stock of the
Corporation which are beneficially owned by such stockholder. The Corporation
may require any proposed nominee to furnish such other information as may
reasonably be required by the Corporation to determine the eligibility of such
proposed nominee to serve as a director of the Corporation. No person shall be
eligible for election by the stockholders as a director of the Corporation
unless nominated in accordance with the procedures set forth herein. The
chairman of the meeting of the stockholders shall, if the facts warrant,
determine and declare to the meeting that a nomination was not made in
accordance with the foregoing procedure, and if he should so determine, he shall
so declare to the meeting and the defective nomination shall be disregarded.
Section 3.4 Vacancies. Subject to the Stockholders Agreement and except
as set forth in the Restated Certificate of Incorporation, any vacancy occurring
on the board of directors and any directorship to be filled by reason of an
increase in the board of directors may be filled by the affirmative vote of a
majority of the remaining directors, although less than a quorum, or by a sole
remaining director. Such newly elected director shall hold such office until his
or her successor is elected and qualified or until his or her earlier
resignation or removal.
Section 3.5 Meetings. The first meeting of each newly elected board of
directors elected at the annual meeting of stockholders shall be held
immediately after, and at the same place as, the annual meeting of the
stockholders, provided a quorum is present, and no notice of such meeting shall
be necessary in order to legally constitute the meeting. The board of directors
may, by resolution, establish a place and time for regular meetings which may
thereafter be held without call or notice.
Section 3.6 Notice of Special Meetings. Special meetings of the
directors may be called by the chairman, president or upon the written request
of any two (2) members of the board of directors. Such notice may be given to
each member of the board of directors by mail by the secretary, the chairman,
the president, or the members of the board calling the meeting by depositing the
same in the United States mail, postage prepaid, at least seven (7) days before
the meeting, addressed to the director at the last address he or she has
furnished to the Corporation for this purpose, and any notice so mailed shall be
deemed to have been given at the time when mailed. Notice may also be given at
least seventy-two (72) hours before the meeting in person, by telephone, or by a
writing (including prepaid telegram, telex, cablegram, radiogram, facsimile or
similar writing),
and such notice shall be deemed to have been given when the personal or
telephone conversation occurs or when the writing is either personally delivered
to the director or is delivered to such address as is stated above, as the case
may be; provided that with respect to special meetings called upon the request
of two (2) directors, notice in person or by telephone shall not be permitted.
Section 3.7 Quorum. Subject to the Stockholders Agreement, at all
meetings of the board of directors, a quorum for the transaction of business
shall consist of a majority of the directors, and the act of a majority of the
directors present at any meeting at which a quorum is present shall be the act
of the board of directors, except as otherwise specifically required by the DGCL
or other law, the Restated Certificate of Incorporation, or these Amended and
Restated Bylaws. If less than a quorum is present, the director or directors
present may adjourn the meeting from time to time without further notice. Voting
by proxy is not permitted at meetings of the board of directors.
Section 3.8 Waiver. Attendance of a director at a meeting of the board
of directors shall constitute a waiver of notice of such meeting, except where a
director attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened. A written waiver of notice signed by a
director or directors entitled to such notice, whether before, at, or after the
time for notice or the time of the meeting, shall be equivalent to the giving of
such notice.
Section 3.9 Action Without Meeting. Any action required or permitted to
be taken at a meeting of the board of directors may be taken without a meeting
if a consent in writing setting forth the action so taken shall be signed by all
of the directors and filed with the minutes of proceedings of the board of
directors. Any such consent may be in counterparts and shall be effective on the
date of the last signature thereon unless otherwise provided therein.
Section 3.10 Attendance by Telephone. Members of the board of directors
may participate in a meeting of such board by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at such meeting.
Section 3.11 Compensation. Members of the board of directors may be paid
their expenses, if any, of attendance at each meeting of the board of directors
(or committee thereof) and may be paid such normal, customary fees for
attendance at each meeting of the board of directors (or committee thereof) or
such annual normal, customary fees as director as the board of directors may
determine from time to time. No such payment shall preclude any director from
serving the Corporation in any other capacity and receiving compensation
therefor.
Section 3.12 Entire Board of Directors. As used in this Article 3 and
in these Amended and Restated Bylaws generally, the term "entire board of
directors" means the
total number of directors which the Corporation would have if there were no
vacancies.
ARTICLE 4
OFFICERS
Section 4.1 Election. The Corporation shall have such officers, with
such titles and duties, as the board of directors may determine by resolution,
which may include a chairman, vice chairman, chief executive officer, chief
operating officer, president, one or more vice presidents, a secretary, and a
treasurer and one or more assistants to such officers. The officers shall in any
event have such titles and duties as shall enable the Corporation to sign
instruments and stock certificates complying with Sections 103(a)(2) and 158 of
the DGCL, and one of the officers shall have the duty to record the proceedings
of the stockholders and the directors in a book to be kept for that purpose.
Subject to the Stockholders Agreement, the officers shall be elected by the
board of directors; provided, however, that the chairman may appoint one or more
assistant secretaries and assistant treasurers and such other subordinate
officers as he or she deems necessary, who shall hold their offices for such
terms and shall exercise such powers and perform such duties as are prescribed
in these Amended and Restated Bylaws or as may be determined from time to time
by the board of directors or the chairman. Any two or more offices may be held
by the same person.
Section 4.2 Removal and Resignation. Any officer may be removed at any
time by the affirmative vote of a majority of the board of directors. Any
officer may resign at any time by giving written notice of his or her
resignation to the president or to the secretary, and acceptance of such
resignation shall not be necessary to make it effective unless the notice so
provides. Subject to the Stockholders Agreement, any vacancy occurring in any
office shall be filled by the board of directors, except for the offices of
assistant secretary or assistant treasurer which may be filled by the chairman.
Section 4.3 Chairman. The chairman shall preside at all meetings of the
stockholders and of the board of directors and shall perform such additional
functions and duties as the board of directors may, from time to time,
prescribe. The chairman must be a director.
Section 4.4 Vice Chairman. The vice chairman shall assist the chairman
in performing such tasks as the chairman may assign to the vice chairman from
time to time and shall perform such additional functions and duties as the board
of directors may, from time to time, prescribe. Except as determined by the
board of directors, the vice chairman shall be the officer next in seniority
after the president and senior to any vice presidents.
Section 4.5 Chief Executive Officer. Subject to the direction and
control of the board of directors, the chief executive officer shall have
general and active management of the business of the Corporation and shall see
that all orders and resolutions of the board of directors are carried into
effect. The chief executive officer shall implement and
carry out the annual budget and business plan and all other matters approved by
the board of directors. He or she may negotiate for, approve and execute
contracts, deeds and other instruments on behalf of the Corporation as are
necessary and appropriate in the general management of the business of the
Corporation or as are approved by the board of directors or any committee
designated by the board of directors. He or she shall perform such additional
functions and duties as the board of directors may from time to time prescribe.
The chief executive officer may delegate a portion of the authority granted to
him or her to other officers and employees of the Corporation. Any such
delegation by the chief executive officer must be in writing with copies
provided to the treasurer and secretary of the Corporation. The chief executive
officer shall be the chairman of the board.
Section 4.6 President. The president shall serve as the chief executive
officer, with the duties and powers enumerated in Section 4.5 above, in the
absence of a duly elected chief executive officer or in the event of the absence
or disability of the chief executive officer. The president shall also perform
such other duties and have such other powers as are prescribed by the board of
directors or the chief executive officer from time to time.
Section 4.7 Chief Operating Officer. The chief operating officer shall
be responsible for directing and supervising the Corporation's operating
activities. He or she shall be the officer primarily responsible for the
development of the Corporation's operations and systems and shall report to the
board of directors thereon when requested at meetings of the board of directors.
He or she shall have such other responsibilities and shall exercise such
additional authority as may from time to time be assigned to him by the board of
directors or the chief executive officer.
Section 4.8 Vice President. The vice president or, if there is more
than one, the vice presidents in the order determined by the board of directors
or, in lieu of such determination, in the order determined by the chief
executive officer shall be the officer or officers next in seniority after the
vice chairman or, if none, the president. Each vice president shall also perform
such duties and exercise such powers as are appropriate and such as are
prescribed by the board of directors or, in lieu of or in addition to such
prescription, such as are prescribed by the chief executive officer from time to
time. Upon the death, absence, or disability of the chief executive officer and
the president, the vice president or, if there is more than one, the vice
presidents in the order determined by the board of directors or, in lieu of such
determination, in the order determined by the chief executive officer or the
president shall perform the duties and exercise the powers of the president.
Section 4.9 Assistant Vice President. The assistant vice president or,
if there is more than one, the assistant vice presidents shall, under the
supervision of the president or a vice president, perform such duties and have
such powers as are prescribed by the board of directors, the chief executive
officer, the president or a vice president from time to time.
Section 4.10 Secretary. The secretary shall give, or cause to be given,
notice of all
meetings of the stockholders and special meetings of the board of directors,
keep the minutes of such meetings, have charge of the corporate seal, if any,
and stock records, be responsible for the maintenance of all corporate files and
records, have authority to affix the corporate seal, if any, to any instrument
requiring it (and, when so affixed, attest it by his or her signature), and
perform such other duties and have such other powers as are appropriate and such
as are prescribed by the board of directors, the chief executive officer or the
president from time to time.
Section 4.11 Assistant Secretary. The assistant secretary or, if there
is more than one, the assistant secretaries in the order determined by the board
of directors shall, in the absence or disability of the secretary or in case
such duties are specifically delegated to him or her by the board of directors,
the chief executive officer, the president or the secretary, perform the duties
and exercise the powers of the secretary and shall, under the supervision of the
secretary, perform such other duties and have such other powers as are
prescribed by the board of directors, the chief executive officer, the president
or the secretary from time to time.
Section 4.12 Treasurer. The treasurer shall have control of the funds
and the care and custody of all the stocks, bonds, and other securities of the
Corporation and shall be responsible for the preparation and filing of tax
returns. He or she shall receive all moneys paid to the Corporation and shall
have authority to give receipts and vouchers, to sign and endorse cheeks and
warrants in its name and on its behalf, and give frill discharge for the same.
He or she shall also have charge of the disbursement of the funds of the
Corporation and shall keep frill and accurate records of the receipts and
disbursements. He or she shall deposit all moneys and other valuable effects in
the name and to the credit of the Corporation in such depositories as shall be
designated by the board of directors and shall perform such other duties and
have such other powers as are appropriate and such as are prescribed by the
board of directors, the chief executive officer or the president from time to
time.
Section 4.13 Assistant Treasurer. The assistant treasurer or, if there
is more than one, the assistant treasurers in the order determined by the board
of directors shall, in the absence or disability of the treasurer or in case
such duties are specifically delegated to him or her by the board of directors,
the chief executive officer, the president, or the treasurer, perform the duties
and exercise the powers of the treasurer and shall, under the supervision of the
treasurer, perform such other duties and have such other powers as are
prescribed by the board of directors, the chief executive officer, the president
or the treasurer from time to time.
Section 4.14 Compensation. Officers shall receive such compensation, if
any, for their services as may be authorized or ratified by the board of
directors. Election or appointment as an officer shall not of itself create a
right to compensation for services performed as such officer.
ARTICLE 5
COMMITTEES
Section 5.1 Designation Of Committees. Subject to the Stockholders
Agreement, the board of directors may establish committees for the performance
of delegated or designated functions to the extent permitted by law, each
committee to consist of one or more directors of the Corporation. Without
derogating from the generality of the foregoing, the board of directors shall
establish (i) an audit committee, (ii) a nominating committee, (iii) a corporate
governance committee, and (iv) a compensation committee.
Section 5.2 Committee Powers And Authority. The board of directors may
provide, by resolution or by amendment to these Amended and Restated Bylaws,
that a committee may exercise all the power and authority of the board of
directors in the management of the business and affairs of the Corporation, and
may authorize the seal of the Corporation to be affixed to all papers which may
require it; provided, however, that a committee may not exercise the power or
authority of the board of directors in reference to amending the Restated
Certificate of Incorporation, adopting an agreement of merger or consolidation,
recommending to the stockholders the sale, lease, or exchange of all or
substantially all of the Corporation's property and assets, recommending to the
stockholders a dissolution of the Corporation or a revocation of a dissolution,
or amending these Amended and Restated Bylaws; and, unless the resolution
expressly so provides, no such committee shall have the power or authority to
declare a dividend or to authorize the issuance of stock.
Section 5.3 Committee Procedures. To the extent the board of directors
or the committee does not establish other procedures for the committee, each
committee shall be governed by the procedures established in Section 3.5 (except
as they relate to an annual meeting of the board of directors) and Sections 3.6,
3.7, 3.8, 3.9, 3.10 and 3.11 of these Amended and Restated Bylaws, as if the
committee were the board of directors.
ARTICLE 6
INDEMNIFICATION
Section 6.1 Indemnification and Advancement of Expenses. To the full
extent permitted by the Corporation Law (as defined below) and any other
applicable law, if any director or officer (as defined below) of the Corporation
is made a party to or is involved in (for example as a witness) any proceeding
(as defined below) by reason of the fact that such person is or was a director
or officer of the Corporation, the Corporation (a) shall indemnify such person
from and against any expenses (including but not limited to attorneys' fees),
judgments, fines (including but not limited to excise taxes assessed on a person
with respect to an employee plan) and amounts paid in settlement incurred by
such person in such proceeding, and (b) shall pay to such person expenses
(including but not limited to attorneys' fees) incurred by such person in such
proceeding in advance of its final disposition.
The Corporation may in its discretion (but is not obligated in
any way to)
indemnify and advance expenses to other employees or agents of the Corporation
to the same extent as to a director or officer.
Any repeal or modification of the foregoing provisions of this
Article 6 for indemnification or advancement of expenses shall not affect
adversely any right or protection stated in such provisions with respect to any
act or omission occurring prior to the time of such repeal or modification. If
any provision of this Article 6 or any part thereof shall be held to be
prohibited by or invalid under applicable law, such provision or part thereof
shall be deemed amended to accomplish the objectives of the provision or part
thereof as originally written to the full extent permitted by law and all other
provisions or parts shall remain in full force and effect.
Section 6.2 Definitions. As used in this Article 6, the following terms
have the following meanings:
(a) Corporation Law. The term "Corporation Law" means the DGCL
as it exists on January 27, 1995, the date this Article 6 is adopted, and as the
DGCL may be thereafter amended from time to time. In the case of any amendment
of the DGCL after the date of adoption of this Article 6, when used with
reference to an act or omission occurring prior to effectiveness of such
amendment (unless prohibited by law), the term "Corporation Law" shall include
such amendment only to the extent that the amendment permits a corporation to
provide broader indemnification rights than the DGCL permitted prior to the
amendment.
(b) Director or Officer. The term "director" or "officer"
means (a) a director of the Corporation or an officer of the Corporation listed
in Section 4.1 of these Amended and Restated Bylaws, and (b) while an individual
is a director or officer of the Corporation, the individual's serving at the
Corporation's request as a director, officer, manager, partner, trustee,
employee or agent of another corporation, partnership, joint venture, trust,
other enterprise or employee benefit plan (including without limitation any
service as a director, officer, manager, employee or agent which imposes duties
on, or involves services by, such director, officer, manager, employee or agent
with respect to any employee benefit plan, its participants or beneficiaries),
and (c) any other position (not with the Corporation itself) in which a director
or officer of the Corporation is serving at the request of the Corporation and
for which indemnification by the Corporation is permitted by the Corporation
Law.
(c) Proceeding. The term "proceeding" means any threatened,
pending or completed action, suit, or proceeding whether civil, criminal,
administrative or investigative, and whether formal or informal.
Section 6.3 Insurance. By action of the board of directors,
notwithstanding any interest of the directors in the action, the Corporation
shall have power to purchase and maintain insurance, in such amounts as the
board of directors deems appropriate, on behalf of any person who is or was a
director or officer of the Corporation, against any liability asserted against
him or her and incurred by him or her in any such capacity, or
arising out of his or her status as such, whether or not he or she is
indemnified against such liability or expense under the provisions of this
Article 6 and whether or not the Corporation would have the power or would be
required to indemnify him or her against such liability under the provisions of
this Article 6 or of the Delaware General Corporation Law or by any other
applicable law.
Section 6.4 Nonexclusive. The indemnification and advancement of
expenses provided by, or granted pursuant to, the other sections of this Article
6 shall not be deemed exclusive of any other rights to which any person seeking
indemnification or advancement of expenses may be entitled, under the Restated
Certificate of Incorporation or under any other bylaw, agreement, insurance
policy, vote of stockholders or disinterested directors, statute, or otherwise,
both as to action in his or her official capacity and as to action in another
capacity while holding such office.
ARTICLE 7
STOCK
Section 7.1 Certificates. Every holder of stock in the Corporation
represented by certificates and, upon request, every holder of uncertificated
shares shall be entitled to have a certificate, signed by or in the name of the
Corporation by the chairman, president or a vice president and by the secretary
or an assistant secretary, or the treasurer or an assistant treasurer of the
Corporation, certifying the number of shares owned by him or her in the
Corporation.
Section 7.2 Facsimile Signatures. Where a certificate of stock is
countersigned (i) by a transfer agent other than the Corporation or its employee
or (ii) by a registrar other than the Corporation or its employee, any other
signature on the certificate may be a facsimile. In case any officer, transfer
agent or registrar who has signed, or whose facsimile signature or signatures
have been placed upon, any such certificate shall cease to be such officer,
transfer agent or registrar, whether because of death, resignation or otherwise,
before such certificate is issued, the certificate may nevertheless be issued by
the Corporation with the same effect as if he or she were such officer, transfer
agent or registrar at the date of issue.
Section 7.3 Transfer Of Stock. Transfers of shares of stock of the
Corporation shall be made on the books of the Corporation only upon presentation
of the certificate or certificates representing such shares properly endorsed or
accompanied by a proper instrument of assignment, except as may otherwise be
expressly provided by the laws of the State of Delaware or by order of a court
of competent jurisdiction. The officers or transfer agents of the Corporation
may, in their discretion, require a signature guaranty before making any
transfer.
Section 7.4 Lost Certificates. The board of directors may direct that a
new certificate of stock be issued in place of any certificate issued by the
Corporation that is alleged to have been lost, stolen, or destroyed, upon the
making of an affidavit of that fact
by the person claiming the certificate to be lost, stolen, or destroyed. When
authorizing such issue of a new certificate, the board of directors may, in its
discretion and as a condition precedent to the issuance of a new certificate,
require the owner of such lost, stolen, or destroyed certificate, or his or her
legal representative, to give the Corporation a bond in such sum as it may
reasonably direct as indemnity against any claim that may be made against the
Corporation on account of the alleged loss, theft, or destruction of any such
certificate or the issuance of such new certificate.
Section 7.5 Registered Stockholders. The Corporation shall be entitled
to treat the person in whose name any shares of stock are registered on its
books as the owner of such shares for all purposes and shall not be bound to
recognize any equitable or other claim or interest in such shares on the part of
any other person, whether or not the Corporation shall have notice of such claim
or interest, except as expressly provided by the laws of the State of Delaware.
ARTICLE 8
SEAL
The board of directors may, but need not, adopt and provide a
seal which shall be circular in form and shall bear the name of the Corporation
and the words "SEAL" and "DELAWARE" and which, if and when adopted, shall
constitute the corporate seal of the Corporation. The seal may be used by
causing it or a facsimile thereof to be impressed or affixed or manually
reproduced.
ARTICLE 9
AMENDMENT
Subject to the Stockholders Agreement, to the provisions of
the Restated Certificate of Incorporation and to the specific provisions of
these Amended and Restated Bylaws, these Amended and Restated Bylaws may at any
time and from time to time be amended, altered or repealed by the board of
directors, but the stockholders may make additional bylaws and may alter and
repeal any bylaws whether adopted by them or otherwise.
Notwithstanding anything to the contrary contained herein, any
reference herein to the Stockholders Agreement that relates to a specific
provision thereof shall become null and void and of no further force and effect
at such time as the relevant provision of the Stockholders Agreement shall be
terminated in accordance with its terms and all references herein to the
Stockholders Agreement shall become null and void and of no further force and
effect at such time as the Stockholders Agreement shall be terminated in its
entirety in accordance with its terms.