Exhibit No. 3(b)
AMENDED AND RESTATED
BYLAWS
OF
SODEXHO MARRIOTT SERVICES, INC.
*****
ARTICLE 1
Offices
Section 1.01. Registered Office. The registered office shall be in the
City of Wilmington, County of New Castle, State of Delaware.
Section 1.02. Other Offices. The Corporation may also have offices at
such other places both within and without the State of Delaware as the Board
of Directors may from time to time determine or the business of the
Corporation may require.
Section 1.03. Books and Records. The books and records of the
Corporation may be kept within or without of the State of Delaware as the
Board of Directors may from time to time determine or the business of the
Corporation may require.
ARTICLE 2
Meetings of Stockholders
Section 2.01. Time and Place of Meetings. All meetings of stockholders
shall be held at such place, either within or without the State of Delaware,
on such date and at such time as may be determined from time to time by the
Board of Directors (or the Chairman in the absence of a designation by the
Board of Directors).
Section 2.02. Annual Meetings. Annual meetings of stockholders shall be
held to elect the Board of Directors and transact such other business as may
properly be brought before the meeting.
Section 2.03. Special Meetings. Special meetings of stockholders may be
called by the Board of Directors or the Chairman of the Board and shall be
called by the Secretary at the request in writing of holders of record of a
majority of the outstanding capital stock of the Corporation entitled to
vote. Such request shall state the purpose or purposes of the proposed
meeting.
Section 2.04. Notice of Meetings and Adjourned Meetings; Waivers of
Notice. (a) Whenever stockholders are required or permitted to take any
action at
a meeting, a written notice of the meeting shall be given which shall state
the place, date and hour of the meeting, and, in the case of a special
meeting, the purpose or purposes for which the meeting is called. Unless
otherwise provided by the General Corporation Law of the State of Delaware as
the same exists or may hereafter be amended ("Delaware Law"), such notice
shall be given not less than 10 nor more than 60 days before the date of the
meeting to each stockholder of record entitled to vote at such meeting.
Unless these bylaws otherwise require, when a meeting is adjourned to another
time or place (whether or not a quorum is present), 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 30 days, or 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.
(b) A written waiver of any such notice signed by the person entitled
thereto, whether before or after the time stated therein, shall be deemed
equivalent to notice. Attendance of a person at a meeting shall constitute a
waiver of notice of such meeting, except when the person attends the 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. Business transacted at any special meeting of stockholders shall be
limited to the purposes stated in the notice.
SECTION 2.05. Quorum. Unless otherwise provided under the certificate
of incorporation or these bylaws and subject to Delaware Law, the presence,
in person or by proxy, of the holders of a majority of the outstanding
capital stock of the Corporation entitled to vote at a meeting of
stockholders shall constitute a quorum for the transaction of business.
SECTION 2.06. Voting. (a) Unless otherwise provided in the certificate
of incorporation and subject to Delaware Law, each stockholder shall be
entitled to one vote for each outstanding share of capital stock of the
Corporation held by such stockholder. Unless otherwise provided in Delaware
Law, the certificate of incorporation or these bylaws, the affirmative vote
of a majority of the shares of capital stock of the Corporation present, in
person or by proxy, at a meeting of stockholders and entitled to vote on the
subject matter shall be the act of the stockholders.
(b) Each stockholder entitled to vote at a meeting of stockholders or
to express consent or dissent to a corporate action in writing without a
meeting may authorize another person or persons to act for him 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.
SECTION 2.07. Action by Consent. (a) Unless otherwise provided in the
certificate of incorporation, any action required to be taken at any annual
or special meeting of stockholders, or any action which may be taken at any
annual or special meeting of stockholders, may be taken without a meeting,
without prior
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notice and without a vote, if a consent or consents in writing, setting forth
the action so taken, shall be signed by the holders of outstanding capital
stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted and shall be delivered to the
Corporation by delivery to its registered office in Delaware, its principal
place of business, or an officer or agent of the Corporation having custody
of the book in which proceedings of meetings of stockholders are recorded.
Delivery made to the Corporation's registered office shall be by hand or by
certified or registered mail, return receipt requested. Prompt notice of the
taking of the corporate action without a meeting by less than unanimous
written consent shall be given to those stockholders who have not consented
in writing.
(b) Every written consent shall bear the date of signature of each
stockholder who signs the consent, and no written consent shall be effective
to take the corporate action referred to therein unless, within 60 days of
the earliest dated consent delivered in the manner required by this section
and Delaware Law to the Corporation, written consents signed by a sufficient
number of holders to take action are delivered to the Corporation by
delivery to its registered office in Delaware, its principal place of
business, or an officer or agent of the Corporation having custody of the
book in which proceedings of meetings of stockholders are recorded. Delivery
made to the Corporation's registered office shall be by hand or by certified
or registered mail, return receipt requested.
Section 2.08. Organization. At each meeting of stockholders, the
Chairman of the Board, if one shall have been elected, (or in his absence or
if one shall not have been elected, the President) shall act as chairman of
the meeting. The Secretary (or in his absence or inability to act, the person
whom the chairman of the meeting shall appoint secretary of the meeting)
shall act as secretary of the meeting and keep the minutes thereof.
Section 2.09. Order of Business. The order of business at all meetings
of stockholders shall be as determined by the chairman of the meeting.
Section 2.10. Notice of Business. At any meeting of stockholders, only
such business shall be conducted as shall have been brought before the
meeting (a) by or at the direction of the Board of Directors or (b) 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 2.10, who shall be entitled
to vote at such meeting and who complies with the notice procedures set forth
in this Section 2.10. For business to be properly brought before a
stockholder meeting by a stockholder, the stockholder must have given timely
notice thereof in writing to the secretary of the Corporation. To be timely,
a stockholder's notice must be delivered to or mailed and received at the
principal executive offices of the Corporation not less than 90 days nor more
than 120 days prior to the meeting; provided, however, that in the event that
less than 100 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 received no later than the close of business on the 10th day
following the day on which such notice of the date of the meeting was mailed
or such public disclosure was made. Each such notice shall set forth: (a) the
name
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and address of the stockholder proposing such business; (b) a brief
description of the business desired to be brought before the meeting,
including the text of any proposal to be introduced, the reasons for
conducting such business at the meeting and any material interest of the
stockholder in such business; (c) the class and number of shares of stock
held of record, owned beneficially and represented by proxy by such
stockholder as of the record date for the meeting (if such date shall then
have been made publicly available) and as of the date of such notice; and (d)
a representation that the stockholder intends to appear in person or by proxy
at the meeting to introduce the business specified in the notice.
Notwithstanding anything in the bylaws to the contrary, no business
shall be conducted at a stockholder meeting except in accordance with the
procedures set forth in this Section 2.10. The chairman of the meeting 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 the 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, a stockholder shall also
comply with all applicable requirements of the Securities Exchange Act of
1934, and the rules and regulations thereunder with respect to the matters
set forth in this Section 2.10.
ARTICLE 3
Directors
SECTION 3.01. General Powers. Except as otherwise provided in
Delaware Law or the certificate of incorporation, the business and affairs of
the Corporation shall be managed by or under the direction of the Board of
Directors.
SECTION 3.02. Number, Election and Term of Office. The number of
directors which shall constitute the whole Board shall be fixed from time to
time by resolution of the Board of Directors but shall not be less than three
nor more than nine. The directors shall be elected at the annual meeting of
the stockholders, except as provided in Section 3.12 herein, and each
director so elected shall hold office until his successor is elected and
qualified or until his earlier death, resignation or removal. Directors need
not be stockholders.
SECTION 3.03. Quorum and Manner of Acting. Unless the certificate of
incorporation or these bylaws require a greater number, at all meetings of
the Board of Directors or any committee thereof a majority of the total
number of directors or members, as the case may be, shall constitute a quorum
for the transaction of business, and the affirmative vote of a majority of
the directors or members, as the case may be, present at meeting at which a
quorum is present shall be the act of the Board of Directors. When a meeting
is adjourned to another time or place (whether or not a quorum is present),
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 Board of Directors or committee may transact any
business which might have been transacted at the original meeting. If a
quorum shall not be present at any
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meeting of the Board of Directors or committee, the directors or members, as
the case may be, present thereat may adjourn the meeting, from time to time,
without notice other than announcement at the meeting, until a quorum shall
be present.
SECTION 3.04. Time and Place of Meetings. The Board of Directors shall
hold its meetings at such place, either within or without the State of
Delaware, and at such time as may be determined from time to time by the
Board of Directors (or the Chairman in the absence of a determination by the
Board of Directors).
SECTION 3.05. Annual Meeting. The Board of Directors shall meet for the
purpose of organization, the election of officers and the transaction of
other business, as soon as practicable after each annual meeting of
stockholders, on the same day and at the same place where such annual meeting
shall be held. Notice of such meeting need not be given. In the event such
annual meeting is not so held, the annual meeting of the Board of Directors
may be held at such place either within or without the State of Delaware, on
such date and at such time as shall be specified in a notice thereof given as
hereinafter provided in Section 3.07 herein or in a waiver of notice thereof
signed by any director who chooses to waive the requirement of notice.
SECTION 3.06. Regular Meetings. After the place and time of regular
meetings of the Board of Directors shall have been determined and notice
thereof shall have been once given to each member of the Board of Directors,
regular meetings may be held without further notice being given.
SECTION 3.07. Special Meetings. Special meetings of the Board of
Directors may be called by the Chairman of the Board or the President and
shall be called by the Chairman of the Board, President or Secretary on the
written request of three directors. Notice of special meetings of the Board
of Directors shall be given to each director at least three days before the
date of the meeting in such manner as is determined by the Board of Directors.
SECTION 3.08. Committees. (a) The Corporation shall have two standing
committees: the audit committee and the compensation committee.
(b) The audit committee shall have the following powers and authority:
(i) employing independent public accountants to audit the books of account,
accounting procedures and financial statements of the Corporation and to
perform such other duties from time to time as the audit committee may
prescribe, (ii) receiving the reports and comments of the Corporation's
internal auditors and of the independent public accountants employed by the
committee and to take such action with respect thereto as may see
appropriate, (iii) requesting the Corporation's consolidated subsidiaries and
affiliated companies to employ independent public accountants to audit their
respective books of account, accounting procedures and financial statements,
(iv) requesting the independent public accountants to furnish to the
compensation committee the certifications required under any present or
future stock option, incentive compensation or employee benefit plan of the
Corporation, (v) reviewing the adequacy of internal financial controls, (vi)
approving the accounting principles employed in financial reporting, (vii)
approving the appointment or removal of the Corporation's general
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auditor, and (viii) reviewing the accounting principles employed in financial
reporting. None of the members of the audit committee shall be an officer or
full-time employee of the Corporation or of any subsidiary or affiliate of
the Corporation.
(c) The compensation committee shall have the following powers and
authority: (i) determining and fixing the compensation for all senior
officers of the Corporation and those of its subsidiaries that the
compensation committee shall from time to time consider appropriate, as well
as all employees of the Corporation and its subsidiaries compensated at a
rate in excess of such amount per annum as may be fixed or determined from
time to time by the Board of Directors, (ii) performing the duties of the
committees of the Board of Directors provided for in any present or future
stock option, incentive compensation or employee benefit plan of the
Corporation or, if the compensation committee shall so determine, any such
plan of any subsidiary of the Corporation and (iii) reviewing the operations
of and policies pertaining to any present or future stock option, incentive
compensation or employee benefit plan of the Corporation or any Subsidiary
that the compensation committee shall from time to time consider appropriate.
None of the members of the compensation committee shall be an officer or
full-time employee of the Corporation or of any subsidiary of the Corporation.
(d) In addition, the Board of Directors may, by resolution passed by a
majority of the whole Board, designate one or more additional committees,
each committee to consist of one or more of the directors of the Corporation.
Any such committee, to the extent provided in the resolution of the Board of
Directors, shall have and may exercise all the powers 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; but no such committee shall have the power
or authority in reference to amending the 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
the bylaws of the Corporation; and unless the resolution of the Board of
Directors or the certificate of incorporation expressly so provide, no such
committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock. Each committee shall keep regular minutes of
its meetings and report the same to the Board of Directors when required.
(e) Regular meetings of committees shall be held at such times as may be
determined by resolution of the Board of Directors or the committee in
question and no notice shall be required for any regular meeting other than
such resolution. A special meeting of any committee shall be called by
resolution of the Board of Directors, or by the Secretary or an Assistant
Secretary upon request of the chairman or a majority of the members of any
committee. Notice of special meetings shall be given to each member of the
committee in the same manner as that provided for in Section 3.07 of these
Bylaws.
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SECTION 3.09. Action by Consent. Unless otherwise restricted by the
certificate of incorporation or these bylaws, any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting, if all members of the Board
or committee, as the case may be, consent thereto in writing, and the writing
or writings are filed with the minutes of proceedings of the Board or
committee.
SECTION 3.10. Telephonic Meetings. Unless otherwise restricted by the
certificate of incorporation or these bylaws, members of the Board of
Directors, or any committee designated by the Board of Directors, may
participate in a meeting of the Board of Directors, or such committee, as the
case may be, by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and such participation in a meeting shall constitute presence in
person at the meeting.
SECTION 3.11. Resignation. Any director may resign at any time by giving
written notice to the Board of Directors or to the Secretary of the
Corporation. The resignation of any director shall take effect upon receipt
of notice thereof or at such later time as shall be specified in such notice;
and unless otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective.
SECTION 3.12. Vacancies. Unless otherwise provided in the certificate of
incorporation, vacancies and newly created directorships resulting from any
increase in the authorized number of directors elected by all the
stockholders having the right to vote as a single class may be filled by a
majority of the directors then in office, although less than a quorum, or by
a sole remaining director. Whenever the holders of any class or classes of
stock or series thereof are entitled to elect one or more directors by the
certificate of incorporation, vacancies and newly created directorships of
such class or classes or series may be filled by a majority of directors
elected by such class or classes or series thereof then in office, or by a
sole remaining director so elected. Each director so chosen shall hold office
until his successor is elected and qualified, or until his earlier death,
resignation or removal. If there are no directors in office, then an election
of directors may be held in accordance with Delaware Law. Unless otherwise
provided in the certificate of incorporation, when one or more directors
shall resign from the Board, effective at a future date, a majority of the
directors then in office, including those who have so resigned, shall have
the power to fill such vacancy or vacancies, the vote thereon to take effect
when such resignation or resignations shall become effective, and each
director so chosen shall hold office as provided in the filling of other
vacancies.
SECTION 3.13. Removal. Any director or the entire Board of Directors may
be removed, with or without cause, at any time by the affirmative vote of the
holders of a majority of the outstanding capital stock of the Corporation
entitled to vote and the vacancies thus created may be filled in accordance
with Section 3.12 herein.
SECTION 3.14. Compensation. Unless otherwise restricted by the
certificate of incorporation or these bylaws, the Board of Directors shall
have
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authority to fix the compensation of directors, including fees and
reimbursement of expenses.
SECTION 3.15. Nomination of Directors. Only persons who are nominated in
accordance with the procedures set forth in these bylaws shall be eligible to
serve as directors. Nominations of persons for election to the Board of
Directors of the Corporation may be made at a meeting of stockholders (a) by
or at the direction of the Board of Directors or (b) by any stockholder of
the Corporation who is a stockholder of record at the time of giving of
notice provided for in this Section 3.15, who shall be entitled to vote for
the election of directors at the meeting and who complies with the notice
procedures set forth in this Section 3.15. 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 must be delivered to or mailed and received at
the principal executive offices of the Corporation not less than 90 days nor
more than 120 days prior to the meeting; provided, however, that in the event
that less than 100 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 received no later than the close of business on the 10th day
following the day on which such notice of the date of the meeting was mailed
or such public disclosure was made. Each such notice shall set forth: (a) the
name and address of the stockholder who intends to make the nomination and of
the person or persons to be nominated; (b) the class and number of shares of
stock held of record, owned beneficially and represented by proxy by such
stockholder as of the record date for the meeting (if such date shall then
have been made publicly available) and as of the date of such notice; (c) a
representation that the stockholder intends to appear in person or by proxy
at the meeting to nominate the person or persons specified in the notice; (d)
a description of all arrangements or understandings between the stockholder
and each nominee and any other person or persons (naming such person or
persons) pursuant to which the nomination or nominations are to be made by
the stockholder; (e) such other information regarding each nominee proposed
by such stockholder as would be required to be included in a proxy statement
filed pursuant to the proxy rules of the Securities and Exchange Commission,
had the nominee been nominated, or intended to be nominated, by the board of
directors; and (f) the consent of each nominee to serve as a director of the
Corporation if so elected.
At the request of the Board of Directors, any person nominated by the
Board of Directors for election as a director shall furnish to the secretary
of the Corporation that information required to be set forth in a
stockholder's notice of nomination which pertains to the nominee. No person
shall be eligible to serve as a director of the Corporation unless nominated
in accordance with the procedures set forth in this bylaw. The chairman of the
meeting shall, if the facts warrant, determine and declare to the meeting that
a nomination was not made in accordance with the procedures prescribed by the
bylaws, and if he should so determine, he shall so declare to the meeting and
the defective nomination shall be disregarded. Notwithstanding the foregoing
provisions of this Section 3.15, a stockholder shall also comply with all
applicable requirements of the Securities Exchange Act of 1934, and the rules
and regulations thereunder with respect to the matters set forth in this
Section 3.15.
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ARTICLE 4
Officers
SECTION 4.01. Principal Officers. The principal officers of the
Corporation shall be a President, a Chief Executive Officer, a Chief
Financial Officer, one or more Executive Vice Presidents, one or more Senior
Vice Presidents, one or more Vice Presidents, a Treasurer, one or more
Assistant Treasurers, a Secretary, and one or more Assistant Secretaries. The
Secretary who shall have the duty, among other things, to record the
proceedings of the meetings of stockholders and directors in a book kept for
that purpose. The Corporation may also have such other principal officers,
including one or more Controllers, as the Board may in its discretion
appoint. One person may hold the offices and perform the duties of any two or
more of said offices, except that no one person shall hold the offices and
perform the duties of President and Secretary.
SECTION 4.02. Election, Term of Office and Remuneration. The principal
officers of the Corporation shall be elected annually by the Board of
Directors at the annual meeting thereof. Each such officer shall hold office
until his successor is elected and qualified, or until his earlier death,
resignation or removal. The remuneration of all officers of the Corporation
shall be fixed by the Board of Directors. Any vacancy in any office shall be
filled in such manner as the Board of Directors shall determine.
SECTION 4.03. Subordinate Officers. In addition to the principal
officers enumerated in Section 4.01 herein, the Corporation may have one or
more Assistant Treasurers, Assistant Secretaries and Assistant Controllers
and such other subordinate officers, agents and employees as the Board of
Directors may deem necessary, each of whom shall hold office for such period
as the Board of Directors may from time to time determine. The Board of
Directors may delegate to any principal officer the power to appoint and to
remove any such subordinate officers, agents or employees.
SECTION 4.04. Removal. Except as otherwise permitted with respect to
subordinate officers, any officer may be removed, with or without cause, at
any time, by resolution adopted by the Board of Directors.
SECTION 4.05. Resignations. Any officer may resign at any time by giving
written notice to the Board of Directors (or to a principal officer if the
Board of Directors has delegated to such principal officer the power to
appoint and to remove such officer). The resignation of any officer shall
take effect upon receipt of notice thereof or at such later time as shall be
specified in such notice; and unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
SECTION 4.06. Powers and Duties. The officers of the Corporation shall
have such powers and perform such duties incident to each of their respective
offices and such other duties as may from time to time be conferred upon or
assigned to them by the Board of Directors.
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ARTICLE 5
Stock Certificate and Transfers
SECTION 5.01. Stock Certificates and Transfers. (a) The interest of each
stockholder of the Corporation shall be evidenced by certificates for shares
of stock in such form as the appropriate officers of the Corporation may from
time to time prescribe; provided that the Board of Directors may provide by
resolution or resolutions that all or some of all classes or series of the
stock of the Corporation shall be represented by uncertificated shares.
Notwithstanding the adoption of such a resolution by the Board of Directors,
every holder of stock 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 of the Board of
Directors, or the President or any other authorized officer and by the
Treasurer or an Assistant Treasurer, or the Secretary or an Assistant
Secretary of the Corporation representing the number of shares registered in
certificate form. Except as otherwise expressly provided by law, the rights
and obligations of the holders of uncertificated stock and the rights and
obligations of the holders of certificates representing stock of the same
class and series shall be identical.
(b) The certificates of stock shall be signed, countersigned and
registered in such manner as the Board of Directors may by resolution
prescribe, which resolution may permit all or any of the signatures on such
certificates to be in facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon a
certificate has ceased to be such officer, transfer agent or registrar
before such certificate is issued, it may be issued by the Corporation with
the same effect as if he were such officer, transfer agent or registrar at
the date of issue.
(c) The shares of the stock of the Corporation represented by
certificates shall be transferred on the books of the Corporation by the
holder thereof in person or by his attorney, upon surrender for cancellation
of certificates for the same number of shares, with an assignment and power
of transfer endorsed thereon or attached thereto, duly executed, with such
proof of the authenticity of the signature as the Corporation or its agents
may reasonably require. Upon receipt of proper transfer instructions from the
registered owner of uncertificated shares such uncertificated shares shall
be canceled and issuance of new equivalent uncertificated shares or
certificated shares shall be made to the person entitled thereto and the
transaction shall be recorded upon the books of the Corporation. Within a
reasonable time after the issuance or transfer of uncertificated stock, the
Corporation shall send to the registered owner thereof a written notice
containing the information required to be set forth or stated on certificates
pursuant to Delaware Law or, unless otherwise provided by Delaware Law, a
statement that the Corporation will furnish without charge to each
stockholder who so requests the powers, designations, preferences and
relative participating, optional or other special rights of each class of
stock or series thereof and the qualifications, limitations or restrictions
of such preferences and/or rights.
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SECTION 5.02. Lost, Stolen or Destroyed Certificates. No certificate for
shares or uncertificated shares of stock in the Corporation shall be issued
in place of any certificate alleged to have been lost, destroyed or stolen,
except on production of such evidence of such loss, destruction or theft and
on delivery to the Corporation of a bond of indemnity in such amount, upon
such terms and secured by such surety, as the Board of Directors or its
designee may in its or his discretion require.
ARTICLE 6
General Provisions
SECTION 6.01. Fixing the Record Date. (a) 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, the Board of Directors
may fix 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, and which record date shall not be more than 60 nor less than 10
days before the date of such meeting. If no record date is fixed by the Board
of Directors, the record date for determining stockholders entitled to notice
of or to vote at a meeting of stockholders 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. 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 that the Board of Directors may fix a
new record date for the adjourned meeting.
(b) In order that the Corporation may determine the stockholders
entitled to consent to corporate action in writing without a meeting, the
Board of Directors may fix 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, and which date shall not be more than 10 days after the
date upon which the resolution fixing the record date is adopted by the Board
of Directors. If no record date has been fixed by the Board of Directors, the
record date for determining stockholders entitled to consent to corporate
action in writing without a meeting, when no prior action by the Board of
Directors is required by Delaware Law, shall be the first date on which a
signed written consent setting forth the action taken or proposed to be taken
is delivered to the Corporation by delivery to its registered office in
Delaware, its principal place of business, or an officer or agent of the
Corporation having custody of the book in which proceedings of meetings of
stockholders are recorded. Delivery made to the Corporation's registered
office shall be by hand or by certified or registered mail, return receipt
requested. If no record date has been fixed by the Board of Directors and
prior action by the Board of Directors is required by Delaware Law, the
record date for determining stockholders entitled to consent to corporate
action in writing without a meeting shall be at the close of business on the
day on which the Board of Directors adopts the resolution taking such prior
action.
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(c) In order that the Corporation may determine the stockholders
entitled to receive payment of any dividend or other distribution or
allotment of any rights or the stockholders 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 a record date,
which record date shall not precede the date upon which the resolution fixing
the record date is adopted, and which record date shall be not more than 60
days prior to such action. If no record date is fixed, the record date for
determining stockholders for any such purpose shall be at the close of
business on the day on which the Board of Directors adopts the resolution
relating thereto.
SECTION 6.02. Dividends. Subject to limitations contained in Delaware
Law and the certificate of incorporation, the Board of Directors may declare
and pay dividends upon the shares of capital stock of the Corporation, which
dividends may be paid either in cash, in property or in shares of the capital
stock of the Corporation.
SECTION 6.03. Year. The fiscal year of the Corporation shall be as
specified by the Board of Directors.
SECTION 6.04. Corporate Seal. The corporate seal shall have inscribed
thereon the name of the Corporation and shall be in such form as may be
approved from time to time by the Board of Directors. The seal may be used by
causing it or a facsimile thereof to be impressed, affixed or otherwise
reproduced.
SECTION 6.05. Voting of Stock Owned by the Corporation. The Board of
Directors may authorize any person, on behalf of the Corporation, to attend,
vote at and grant proxies to be used at any meeting of stockholders of any
corporation (except this Corporation) in which the Corporation may hold stock.
SECTION 6.06. Waiver of Notice. Whenever any notice is required to be
given to any stockholder or director of the Corporation under the provisions
of Delaware Law, a waiver thereof in writing, signed by the person or persons
entitled to such notice, whether before or after the time stated therein,
shall be deemed equivalent to the giving of such notice. Neither the business
to be transacted at, nor the purpose of, any annual or special meeting of the
stockholders or any meeting of the Board of Directors or committee thereof
need be specified in any waiver of notice of such meeting.
SECTION 6.07. Audits. The accounts, books and records of the Corporation
shall be audited upon the conclusion of each fiscal year by an independent
certified public accountant selected by the audit committee, and it shall be
the duty of the audit committee to cause such audit to be made annually.
SECTION 6.08. Resignations. Any director or any officer, whether elected
or appointed, may resign at any time upon notice of such resignation to the
Corporation.
SECTION 6.09. Indemnification and Insurance. (a) Each person who was or
is a party or is threatened to be made a party to, or is involved in any
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threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (a "Proceeding"), by reason of the
fact that he or she or a person of whom he or she is the legal
representative, is or was a director, officer, employee or agent of the
Corporation or a Subsidiary, or is or was serving at the request of the
Corporation or a Subsidiary as a director, officer, partner, member, employee
or agent of another corporation, partnership, limited liability company,
joint venture, trust or other enterprise, shall be indemnified and held
harmless by the Corporation to the fullest extent permitted from time to time
by Delaware Law as the same exists or may hereafter be amended (but, if
permitted by applicable law, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide
prior to such amendment) or any other applicable laws as presently or
hereafter in effect, and such indemnification shall continue to a person who
has ceased to be such a director, officer, employee or agent and shall inure
to the benefit of his or her heirs, executors and administrators; provided,
that the Corporation shall indemnify any such person seeking indemnification
in connection with a Proceeding (or part thereof) initiated by such person
only if such Proceeding (or part thereof) was authorized by the Board of
Directors or is a Proceeding to enforce such person's claim to
indemnification pursuant to the rights granted by this Bylaw. The Corporation
shall pay the expenses incurred by such person in defending any such
Proceeding in advance of its final disposition upon receipt (unless the
Corporation upon authorization of the Board of Directors waives such
requirement to the extent permitted by applicable law) of an undertaking by
or on behalf of such person to repay such amount if it shall ultimately be
determined that such person is not entitled to be indemnified by the
Corporation as authorized by this Bylaw or otherwise.
(b) The indemnification and the advancement of expenses incurred in
defending a Proceeding prior to its final disposition provided by, or granted
pursuant to this Bylaw shall not be exclusive of any other right which any
person may have or hereafter acquire under any statute, provision of the
Certificate of Incorporation, other provision of these bylaws, agreement, vote
of stockholders or Disinterested Directors or otherwise. No repeal,
modification or amendment of, or adoption of any provision inconsistent with,
this Section 6.09, nor to the fullest extent permitted by applicable law, any
modification of law, shall adversely affect any right or protection of any
person granted pursuant hereto existing at or with respect to any events that
occurred prior to, the time of such repeal, amendment adoption or
modification.
(c) The Corporation may maintain insurance, at its expense, to protect
itself and any person who is or was a director, officer, partner, member,
employee, or agent of the Corporation or a Subsidiary or of another
corporation, partnership, joint venture, trust or other enterprise against
any expense, liability or loss, whether or not the Corporation would have the
power to indemnify such person against such expense, liability or loss under
Delaware Law.
(d) If any provision or provisions of this Bylaw shall be held to be
invalid, illegal or unenforceable for any reason whatsoever: (i) the
validity, legality and enforceability of the remaining provisions of this
Bylaw (including, without
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limitation, each portion of any paragraph of this Bylaw containing any such
provision held to be invalid, illegal or unenforceable, that is not itself
held to be invalid, illegal or unenforceable) shall not in any way be
affected or impaired thereby; and (ii) to the fullest extent possible, the
provisions of this Bylaw (including, without limitation, each such portion of
any paragraph of this Bylaw containing any such provision held to be invalid,
illegal or unenforceable) shall be construed so as to give effect to the
intent manifested by the provision held invalid, illegal or unenforceable.
(e) For purposes of these Bylaws:
(i) "Disinterested Director" means a director of the Corporation
who is not and was not a party to the proceeding or matter in respect of
which indemnification is sought by the claimant.
(ii) "Subsidiary" means a corporation, a majority of the capital
stock of which is owned directly or indirectly by the Corporation.
(f) Any notice, request, or other communication required or permitted
to be given to the Corporation under this Bylaw shall be in writing and
either delivered in person or sent by telecopy, telex, telegram, overnight
mail or courier service, or certified or registered mail, postage prepaid,
return receipt requested, to the Secretary of the Corporation and shall be
effective only upon receipt by the Secretary.
Section 6.10. Amendments. These bylaws or any of them, may be altered,
amended or repealed, or new bylaws may be made, by the stockholders entitled
to vote thereon at any annual or special meeting thereof or by the Board of
Directors.
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