Exhibit 3.2
BY-LAWS
OF
MARSH & McLENNAN COMPANIES, INC.
RESTATED AS LAST AMENDED
JANUARY 21, 1999
I N D E X
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Page Number
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ARTICLE I
Offices............................................. 1
ARTICLE II
Meetings of the Stockholders........................ 1
ARTICLE III
Directors........................................... 9
ARTICLE IV
Officers............................................ 11
ARTICLE V
Committees.......................................... 15
ARTICLE VI
Indemnification..................................... 20
ARTICLE VII
Checks, Contracts, Other Instruments................ 26
ARTICLE VIII
Capital Stock....................................... 26
ARTICLE IX
Miscellaneous....................................... 29
ARTICLE X
Amendments.......................................... 30
BY-LAWS
OF
MARSH & McLENNAN COMPANIES, INC.
ARTICLE I
Offices
The principal office of the Corporation in Delaware shall be at Corporation
Trust Center, 1209 Orange Street, in the City of Wilmington, County of New
Castle, in the State of Delaware, and The Corporation Trust Company shall be the
resident agent of the Corporation in charge thereof. The Corporation may also
have such other offices at such other places as the Board of Directors may from
time to time designate or the business of the Corporation may require.
ARTICLE II
Meetings of the Stockholders
SECTION 1. Place of Meetings. Meetings of the stockholders may be held at
such place as the Board of Directors may determine.
SECTION 2. Annual Meetings. The annual meeting of the stockholders shall be
held on the third Thursday of May in each year, or such other day in May as may
be determined from time to time by the Board of Directors, at such time and
place as the Board of Directors may designate. At said meeting the stockholders
shall elect a Board of Directors and transact any other business authorized or
required to be transacted by the stockholders.
SECTION 3. Special Meetings. Special meetings of the stockholders, except
as otherwise provided by law, shall be called by the Chairman of the Board, or
whenever the Board of Directors shall so direct, the Secretary.
SECTION 4. Notice of Meetings. Except as otherwise provided by law, written
or printed notice stating the place, day and hour of the meeting, and in the
case of a special meeting the purpose or purposes for which the meeting is
called, shall be delivered personally or mailed, postage prepaid, at least ten
(10) days but not more than sixty (60) days before such meeting to each
stockholder at such address as appears on the stock books of the Corporation.
SECTION 5. Fixing of Record Date. In order to determine the stockholders
entitled to notice of or to vote at any meeting of the stockholders or any
adjournment thereof, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board of Directors may fix, in advance, a record date
which shall not be more than sixty (60) nor less than ten (10) days before the
date of such meeting, and no more than sixty (60) days prior to any other
action.
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 of the meeting 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, and such date for any other
purpose shall be the date on which the Board of Directors 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 of Directors may fix a new record
date for the adjourned meeting.
SECTION 6. Quorum. The holders of a majority of the stock issued and
outstanding present in person or represented by proxy shall be requisite and
shall constitute a quorum at all meetings of the stockholders for the
transaction of business, except as otherwise provided by law, by the Restated
Certificate of Incorporation or by these by-laws. If, however, such majority
shall not be present or represented at any meeting of the stockholders, the
stockholders 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 the requisite amount of stock shall be represented. At such adjourned
meeting at which the requisite amount of stock shall be represented, any
business may be transacted which might have been transacted at the meeting as
originally called.
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SECTION 7. Voting. Each stockholder entitled to vote in accordance with the
terms of the Restated Certificate of Incorporation and in accordance with the
provisions of these by-laws shall be entitled to one vote, in person or by
proxy, for each share of stock entitled to vote held by such stockholder, but no
proxy shall be voted after three years from its date unless such proxy provides
for a longer period. The vote for directors and, upon demand of any stockholder,
the vote upon any question before the meeting shall be by ballot. All elections
of directors shall be decided by plurality vote; all other questions shall be
decided by a majority of the shares present in person or represented by proxy at
the meeting of stockholders and entitled to vote on the subject matter, except
as otherwise provided in the Restated Certificate of Incorporation or by law or
regulation.
SECTION 8. Inspectors of Election. All elections of directors and all votes
where a ballot is required shall be conducted by two inspectors of election who
shall be appointed by the Board of Directors; but in the absence of such
appointment by the Board of Directors, the Chairman of the meeting shall appoint
such inspectors who shall not be directors or candidates for the office of
director.
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SECTION 9. Voting List. The Secretary shall prepare and make, at least ten
days before every election of directors, a complete list of the stockholders
entitled to vote, arranged in alphabetical order and showing the address of each
stockholder and the number of shares registered in his name. 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.
SECTION 10. Stockholder Nominations of Directors. Only persons who are
nominated in accordance with the following procedures shall be eligible for
election as directors at a meeting of stockholders. Nominations of persons for
election to the Board of Directors of the Corporation may be made at a meeting
of stockholders by or at the direction of the Board of Directors, by any person
appointed by the Board of Directors or 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 10. Such nominations, other than
those made by or at the direction of the Board of Directors
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or by any person appointed by the Board of Directors, shall be made pursuant to
timely notice in writing to the Secretary, Marsh & McLennan Companies, Inc. To
be timely, a stockholder's notice shall be delivered to or mailed and received
at the principal executive offices of the Corporation not less than 60 days nor
more than 90 days prior to the meeting; provided, however, that in the event
that the meeting is not to be held on the date set forth in Article II, Section
2 and less than 75 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 15th day
following the day on which such public disclosure was made. Such stockholder's
notice to the Secretary 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
Rule 14a under the Securities Exchange Act of 1934, as amended; and (b) as to
the stockholder giving the notice (i) the name and record address of the
stockholder and (ii) the class and number of shares of capital stock of the
Corporation which are
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beneficially owned by the 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 as a
director of the Corporation unless nominated in accordance with the procedures
set forth herein.
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
foregoing procedure, and if he should so determine, he shall so declare to the
meeting and the defective nomination shall be disregarded.
SECTION 11. Advance Notice of Stockholder Proposed Business at Annual
Meetings. At an annual meeting of the stockholders, only such business shall be
conducted as shall have been properly brought before the meeting. To be properly
brought before an annual meeting, business must be specified in the notice of
meeting (or any supplement thereto) given by or at the direction of the Board of
Directors, otherwise properly brought before the meeting by or at the direction
of the Board of Directors, or otherwise properly brought before the meeting by a
stockholder. In addition to any other applicable requirements, for business to
be properly brought before an annual meeting by a stockholder, the stockholder
must have given timely notice thereof in writing to the Secretary, Marsh &
McLennan Companies,
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Inc. 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 60
days nor more than 90 days prior to the meeting; provided, however, that in the
event that the meeting is not to be held on the date set forth in Article II,
Section 2 and less than 75 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 15th day
following the day on which such notice of the date of the annual meeting was
mailed or such public disclosure was made. A stockholder's notice to the
Secretary shall 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 the annual meeting, (ii) the name and record address of the stockholder
proposing such business, (iii) the class and number of shares of capital stock
of the Corporation which are beneficially owned by the stockholder and (iv) any
material interest of the stockholder in such business.
Notwithstanding anything in these by-laws to the contrary, no
business shall be conducted at the annual meeting except in accordance with the
procedures set forth in this Section 11; provided, however, that nothing in this
Section 11
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shall be deemed to preclude discussion by any stockholder of any business
properly brought before the annual meeting in accordance with said procedure.
The Chairman of an annual meeting shall, if the facts warrant,
determine and declare to the meeting that business was not properly brought
before the meeting in accordance with the provisions of this Section, 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.
ARTICLE III
Directors
SECTION 1. Powers, Number, Tenure, Qualifications and Compensation. The
business and affairs of the Corporation shall be managed by its Board of
Directors which shall consist of the number of members set forth in Article
FIFTH of the Restated Certificate of Incorporation, none of whom need be
stockholders, but no person shall be eligible to be nominated or elected a
director of the Corporation who has attained the age of 72 years. In addition to
the powers and duties by these by-laws expressly conferred upon them, the Board
of Directors may exercise all such powers of the Corporation and do all such
lawful acts and things as are not by statute or by the Restated Certificate of
Incorporation or by these by-laws directed or required to be
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exercised or done by the stockholders. The Board of Directors may provide for
compensation of directors who are not otherwise compensated by the Corporation
or any subsidiary thereof.
SECTION 2. Meetings and Notice. The Board shall, for the purposes of
organization, the election and appointment of officers and the transaction of
other business, hold a meeting as soon as convenient after the annual meeting of
stockholders. Regular meetings of the directors may be held without notice at
such places and times as shall be determined from time to time by resolution of
the directors. Special meetings of the Board may be called by the Chairman of
the Board on at least twenty-four (24) hours' notice to each director,
personally or by mail or by telegram or by telephone. Special meetings shall
also be called in like manner on the written request of any three (3) directors.
The attendance of a director at any meeting shall dispense with notice to him of
the meeting. Members of the Board of Directors may participate in a meeting of
the 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 participation in a meeting pursuant to this section shall constitute
presence in person at such meeting.
SECTION 3. Offices, Books, Place of Meeting. The Board of Directors may
have one or more offices and keep the books of the Corporation outside of
Delaware, and may hold its meetings at such places as it may from time to time
determine.
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SECTION 4. Quorum. At all meetings of the Board of Directors one-third
(1/3) of the total number of directors shall be necessary and sufficient to
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 of Directors, except as may be otherwise specifically provided
by statute or by the Restated Certificate of Incorporation or by these by-laws.
SECTION 5. Informal Action. The Board of Directors shall, except as
otherwise provided by law, have power to act in the following manner: A
resolution in writing, signed by all of the members of the Board of Directors
shall be deemed to be action by such Board to the effect therein expressed with
the same force and effect as if the same had been duly passed at a duly convened
meeting, and it shall be the duty of the Secretary of the Corporation to record
any such resolution in the minute book of the Corporation, under its proper
date.
ARTICLE IV
Officers
SECTION 1. Election. The Board of Directors shall elect officers of the
Corporation, including a Chairman of the Board, a President, one or more Vice
Presidents, a Secretary, a Treasurer and a Controller.
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SECTION 2. Term and Removal. The officers of the Corporation designated in
SECTION 1 of this Article IV, shall hold office for one year and until their
respective successors are chosen and qualify in their stead. Any officer may be
removed at any time, with or without cause, by the Board of Directors. An
officer appointed by the Executive Committee may also be removed at any time,
with or without cause by said Committee.
SECTION 3. Chairman of the Board. The Chairman of the Board of Directors
shall be the Chief Executive Officer of the Corporation and, subject to the
control of the Board of Directors, and of the committees exercising functions of
the Board of Directors, shall have general supervision over the business and
property of the Corporation. He shall preside at all meetings of the
stockholders and of the Board of Directors. He shall review and recommend to the
Board of Directors both short-term objectives and long-term planning for the
business. He shall also preside at meetings of any committee of which he is a
member which is not attended by the chairman of such committee. He or his
delegate may vote on behalf of the Corporation the shares owned by the
Corporation in other corporations in such manner as they deem advisable unless
otherwise directed by the Board of Directors. He shall have full authority to
take other
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action on behalf of the Corporation in respect of shares of stock in other
corporations owned by the Corporation, directly or indirectly, including the
obtaining of information and reports.
SECTION 4. President. Subject to the control of the Board of Directors, and
of the committees exercising functions of the Board of Directors, the President
shall assist the Chairman of the Board in the performance of his general duties
and perform such other duties as may from time to time be assigned to him by the
Chairman of the Board.
SECTION 5. Vice Presidents. The Vice President shall have such powers,
duties, supplementary titles and other designations as the Board of Directors
may from time to time determine.
SECTION 6. Secretary. The Secretary shall attend all meetings of the
stockholders and the Board of Directors. He shall, at the invitation of the
chairman thereof, attend meetings of the committees elected by the Board or
established by these by-laws. He shall record all votes and minutes of all
proceedings which he attends and receive and maintain custody of all votes and
minutes of all such proceedings. Votes and minutes of meetings of the
Compensation and Audit Committees shall be recorded and maintained as each such
committee shall determine. The Secretary shall give or cause to be given notice
of meetings of the stockholders, Board of Directors, and, when instructed to do
so by the Chairman thereof, committees of the Board of
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Directors, and shall have such other powers and duties as may be prescribed by
appropriate authority. The Secretary shall keep in safe custody the seal of the
Corporation and shall affix the seal to any instrument requiring the same. The
Assistant Secretaries shall have such powers and perform such duties as may be
prescribed by appropriate authority.
SECTION 7. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall deposit all monies and other valuable effects in
the name and to the credit of the Corporation in such depositaries as may be
designated by, or in accordance with general policies adopted by, the Board of
Directors or Executive Committee. He shall disburse the funds of the Corporation
as may be ordered by the Chairman, the chief financial officer, the Board of
Directors or the Executive Committee, taking proper vouchers for such
disbursements, and shall render to the Chairman, the chief financial officer and
the Board of Directors whenever they may require it, an account of all his
transactions as Treasurer. He shall have such powers and perform such duties as
shall be assigned to him by appropriate authority. The Assistant Treasurers
shall have such powers and perform such duties as may be prescribed by the chief
financial officer or the Treasurer.
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SECTION 8. Controller. The Controller shall be the chief accounting officer
of the Corporation. He shall keep or cause to be kept all books of account and
accounting records of the Corporation and shall render to the Chairman, the
chief financial officer and the Board of Directors whenever they may require it,
a report of the financial condition of the Corporation. He shall have such other
powers and duties as shall be assigned to him by appropriate authority. The
Assistant Controllers shall have such powers and perform such duties as may be
prescribed by the chief financial officer or the Controller.
SECTION 9. Bond. The Board of Directors may, or the Chairman may, require
any officers, agents or employees of the Corporation to furnish bonds
conditioned on the faithful performance of their respective duties with a surety
company satisfactory to the Board of Directors or the Chairman as surety. The
expenses of such bond shall be paid by the Corporation.
ARTICLE V
Committees
SECTION 1. Executive Committee. An Executive Committee, composed of the
Chairman of the Board and such other directors as the Board of Directors may
determine from time to time shall be elected by the Board of Directors. Except
as provided hereinafter or in resolutions of the Board of Directors, the
Executive Committee shall have, and may exercise when the
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Board of Directors is not in session, 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. The Executive Committee shall not, however, have power or
authority in reference to (a) approving or adopting, or recommending to the
stockholders, any action or matter expressly required by the provisions of the
General Corporation Law of Delaware to be submitted to stockholders for
approval, (b) adopting, amending or repealing the by-laws of the Corporation,
(c) electing or appointing the Chairman of the Board of the Corporation or (d)
declaring a dividend.
SECTION 2. Compensation Committee. A Compensation Committee, including a
chairman, having such number of directors as the Board of Directors shall
determine from time to time, shall be elected by the Board of Directors. No
member of the Compensation Committee while holding such office and within the
previous year shall, in addition to usual compensation as a director, receive or
be granted or be eligible for any award or any other benefit under any
compensation, stock option or other benefit plans that the committee may
supervise, administer, or review or while holding such office shall be a
full-time employee of the Corporation or any of its subsidiaries. The
Compensation Committee shall fix the compensation of the chief executive officer
of the Corporation and approve the compensation of senior
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executives of the Corporation or any of its subsidiaries designated under
procedures established by the Committee from time to time. The Compensation
Committee will approve, disapprove or modify the retention by the Corporation of
advisors or consultants on matters relating to the compensation of the chief
executive officer and senior executives of the Corporation. The Compensation
Committee shall also satisfy itself, if in its opinion circumstances make it
desirable to do so, that the general compensation policies and practices
followed by the Corporation and its subsidiaries are in the Corporation's best
interests. The Compensation Committee shall have such other duties as may be set
forth in the Corporation's compensation, stock option or other benefit plans as
they may exist from time to time, or otherwise as provided by the Board of
Directors. The Compensation Committee shall report to the Board at least
annually and whenever the Board may require respecting the discharge of the
committee's duties and responsibilities. The term "compensation" as used in this
Section shall mean salaries, bonuses, agreements to pay deferred compensation,
and discretionary benefits such as stock options, but shall not include payments
to or under any employee pension, retirement, profit sharing, stock investment,
or similar plan.
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SECTION 3. Audit Committee. An Audit Committee, including a chairman,
having such number of directors as the Board of Directors may determine from
time to time, shall be elected by the Board of Directors. The members of the
Audit Committee shall be elected by the Board of Directors from among the
members of the Board who are not officers or employees of the Corporation. The
Audit Committee shall meet at least annually with the Corporation's independent
public accountants, and at any time during the year when considered appropriate
by the independent public accountants or the committee. The committee shall
review the annual financial statements of the Corporation with the independent
public accountants and shall review the practices and procedures adopted by the
Corporation in the preparation of such financial statements. The Audit Committee
shall submit recommendations to the Board of Directors with respect to the
selection of independent public accountants to examine the Corporation's annual
financial statements and shall review the independent public accountant's annual
scope of audit. The Audit Committee shall, as it may deem appropriate from time
to time, report and make recommendations to the Board of Directors.
SECTION 4. Reports. The Executive Committee shall report to each regular
meeting and, if directed, to each special meeting of the Board of Directors all
action taken by such
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committee subsequent to the date of its last report, and other committees shall
report to the Board of Directors at least annually.
SECTION 5. Other Committees. The Board of Directors may appoint such other
committee or committees as it deems desirable.
SECTION 6. Election and Term. The Chairman and each member of every
committee shall be a member of and, except as provided in Section 7 of this
Article V, elected by the Board of Directors and shall serve until such person
shall cease to be a member of the Board of Directors or such person's membership
on the committee shall be terminated by the Board.
SECTION 7. Meetings, Quorum and Notice. The Chairman of any committee shall
be the presiding officer thereof. Any committee may meet at such time or times
on notice to all the members thereof by the Chairman or by a majority of the
members or by the Secretary of the Corporation and at such place or places as
such notice may specify. At least twenty-four (24) hours' notice of the meeting
shall be given but such notice may be waived. Such notice may be given by mail,
telegraph, telephone or personally. Each committee shall cause minutes to be
kept of its meetings which record all actions taken. Such minutes shall be
placed in the custody of the Secretary of the Corporation except that the
Compensation and Audit Committees shall each determine who shall maintain
custody of its minutes or
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portions thereof. Any committee may, except as otherwise provided by law, act in
its discretion by a resolution or resolutions in writing signed by all the
members of such committee with the same force and effect as if duly passed by a
duly convened meeting. Any such resolution or resolutions shall be recorded in
the minute book of the committee under the proper date thereof. Members of any
committee may also participate in a meeting of 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 participation in
the meeting pursuant to this provision shall constitute presence in person at
such meeting. A majority of the members of each committee shall constitute a
quorum. In the absence or disqualification of a member of a committee, the
member or members present at any meeting and not disqualified from voting,
whether or not such members constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any such
absent or disqualified member.
ARTICLE VI
Indemnification
SECTION 1. Right to Indemnification. Each person who was or is made a party
or is threatened to be made a party to or is otherwise involved in any action,
suit or proceeding, whether
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civil, criminal, administrative or investigative (hereinafter, a "proceeding"),
by reason of the fact that, on or after May 21, 1987, he or she is serving or
had served as a director, officer or employee of the Corporation or, while
serving as such director, officer or employee, is serving or had served at the
request of the Corporation as a director, officer, employee or agent of, or in
any other capacity with respect to, another corporation or a partnership, joint
venture, trust or other entity or enterprise, including service with respect to
employee benefit plans (hereinafter, an "indemnitee"), whether the basis of such
proceeding is alleged action in an official capacity as a director, officer,
employee or agent or in any other capacity while serving as a director, officer
or employee of the Corporation, shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by Delaware law, as the same exists
or may hereafter be changed or amended (but, in the case of any such change or
amendment, only to the extent that such change or amendment permits the
Corporation to provide broader indemnification rights than permitted prior
thereto), against all expense, liability and loss (including attorneys' fees,
judgments, fines, ERISA excise taxes or penalties and amounts to be paid in
settlement) reasonably incurred or suffered by an indemnitee in connection
therewith and such indemnification shall continue as to an indemnitee who has
ceased to be a director, officer or employee of the Corporation and shall inure
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to the benefit of the indemnitee's heirs, executors and administrators;
provided, however, that except as provided in Section 3 of this Article with
respect to proceedings seeking to enforce rights to indemnification, the
Corporation shall indemnify an indemnitee in connection with a proceeding (or
part thereof) initiated by the indemnitee only if such proceeding (or part
thereof) was authorized by the board of directors of the Corporation. The right
to indemnification conferred in this Article shall be a contract right.
SECTION 2. Advancement of Expenses. An indemnitee who is a director or
officer of the Corporation, and any other indemnitee to the extent authorized
from time to time by the board of directors of the Corporation, shall have the
right to be paid by the Corporation the expenses incurred in defending any such
proceeding in advance of its final disposition (hereinafter, an "advancement of
expenses"); provided, however, that, if the Delaware General Corporation Law
requires, an advancement of expenses incurred by an indemnitee in his or her
capacity as a director or officer (and not in any other capacity in which
service was or is rendered by such indemnitee, including, without limitation,
service to an employee benefit plan) shall be made only upon delivery to the
Corporation of an undertaking (hereinafter, an "undertaking"), by or on behalf
of such indemnitee, to repay all amounts so advanced if it shall ultimately be
determined by final judicial decision from which
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there is no further right to appeal (hereinafter, a "final adjudication") that
such indemnitee is not entitled to be indemnified for such expenses under this
Article or otherwise.
SECTION 3. Right of Indemnitee to Bring Suit. If a claim under Section 1 or
Section 2 of this Article is not paid in full by the Corporation within sixty
days in the case of Section 1 and twenty days in the case of Section 2 after a
written claim has been received by the Corporation, the indemnitee may at any
time thereafter bring suit against the Corporation to recover the unpaid amount
of the claim. If successful in whole or in part in any such suit, or in a suit
brought by the Corporation to recover an advancement of expenses pursuant to
terms of an undertaking, the indemnitee shall be entitled to be paid also the
expense of prosecuting or defending such suit. In (i) any suit brought by the
indemnitee to enforce a right to indemnification hereunder (other than a suit
brought by the indemnitee to enforce a right to an advancement of expenses), it
shall be a defense that, and (ii) any suit by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking the Corporation
shall be entitled to recover such expenses upon a final adjudication that, the
indemnitee has not met the applicable standard of conduct set forth in the
Delaware General Corporation Law. Neither the failure of the Corporation
(including its board of directors, independent legal counsel, or its
stockholders) to have made a
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determination prior to the commencement of such suit that indemnification of the
indemnitee is proper in the circumstances because the indemnitee has met the
applicable standard of conduct set forth in the Delaware General Corporation
Law, nor an actual determination by the Corporation (including its board of
directors, independent legal counsel, or its stockholders) that the indemnitee
has not met such applicable standard of conduct, shall create a presumption that
the indemnitee has not met the applicable standard of conduct or, in the case of
such a suit brought by the indemnitee, be a defense to the action. In any suit
brought by the indemnitee to enforce a right to indemnification or to an
advancement of expenses hereunder, or by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the burden of
proving that the indemnitee is not entitled to be indemnified, or to such
advancement of expenses, under this Article or otherwise shall be on the
Corporation.
SECTION 4. Indemnification of Agents of the Corporation. The Corporation
may, to the extent authorized from time to time by its board of directors, grant
rights to indemnification, and to be paid by the Corporation the expenses
incurred in defending any proceeding in advance of its final disposition, to any
agent of the Corporation to the fullest extent of the provisions of this Article
with respect to the indemnification of directors, officers and employees of the
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Corporation and advancement of expenses of directors and officers of the
Corporation.
SECTION 5. Non-Exclusivity of Rights. The right to indemnification and to
the advancement of expenses conferred in this Article shall not be exclusive of
any other right which any person may have or hereafter acquire under any
statute, the Corporation's Restated Certificate of Incorporation, these by-laws,
any agreement, vote of stockholders or disinterested directors, or otherwise.
SECTION 6. Insurance. The Corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent of the
Corporation 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 the Delaware General Corporation Law.
SECTION 7. Survival of Prior Indemnification Provisions; Effect of
Subsequent Change on Existing Rights. Nothing contained in this Article shall be
construed as altering or eliminating the rights to indemnification existing, or
based upon service by an indemnitee, prior to May 21, 1987. Any repeal or
modification of this Article shall not adversely affect any right or protection
of a director, officer or employee of the Corporation existing at the time of
such repeal or modification.
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ARTICLE VII
Checks, Contracts, Other Instruments
SECTION 1. Documents, Instruments Not Requiring Seal. All checks, notes,
drafts, acceptances, bills of exchange, orders for the payment of money, and all
written contracts and instruments of every kind which do not require a seal
shall be signed by such officer or officers, or person or persons as these
by-laws, or the Board of Directors or Executive Committee by resolution, may
from time to time prescribe.
SECTION 2. Documents, Instruments Requiring Seal. All bonds, deeds,
mortgages, leases, written contracts and instruments of every kind which require
the corporate seal of the Corporation to be affixed thereto, shall be signed and
attested by such officer or officers as these by-laws, or the Board of Directors
or Executive Committee, by resolution, may from time to time prescribe.
ARTICLE VIII
Capital Stock
SECTION 1. Stock Certificates. The certificates for shares of the capital
stock of the Corporation shall be in such form, not inconsistent with the
Restated Certificate of Incorporation, as shall be approved by the Board of
Directors. Each certificate shall be signed by the Chairman of the Board of
Directors or a Vice President and also by the Secretary, an Assistant Secretary,
the Treasurer or an Assistant Treasurer,
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provided, however, that any such signature of an officer of the Corporation or
of the Transfer Agent, Assistant Transfer Agent, Registrar or Assistant
Registrar, or any of them, may be a facsimile. In case any officer or officers
who shall have signed, or whose facsimile signature or signatures shall have
been used on any such certificate or certificates shall cease to be such officer
or officers of the Corporation, whether because of death, resignation or
otherwise before such certificate or certificates shall have been delivered by
the Corporation, such certificate or certificates may nevertheless be adopted by
the Corporation and be used and delivered as though the officer or officers who
signed the said certificate or certificates or whose facsimile signature or
signatures shall have been used thereon had not ceased to be said officer or
officers of the Corporation. All certificates shall be consecutively numbered,
shall bear the corporate seal and the names and addresses of all persons owning
shares of capital stock of the Corporation with the number of shares owned by
each; and, the date or dates of issue of the shares of stock held by each shall
be entered in books kept for that purpose by the proper officers or agents of
the Corporation.
SECTION 2. Recognition of Holders of Record. 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, accordingly, shall not be bound to recognize any
equitable or other claim to or interest in such share or shares on the part of
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any other person, whether or not it has actual or other notice thereof, save as
expressly provided by the laws of the State of Delaware.
SECTION 3. Lost Certificates. Except in cases of lost or destroyed
certificates, and in that case only after conforming to the requirements
hereinafter provided, no new certificates shall be issued until the former
certificate for the shares represented thereby shall have been surrendered and
cancelled. The Board of Directors may direct a new certificate or certificates
to be issued in place of any certificate or certificates theretofore issued by
the Corporation alleged to have been lost or destroyed, upon the making of an
affidavit of that fact by the person claiming the certificate or certificates to
be lost or destroyed; and the Board of Directors may, in its discretion and as a
condition precedent to the issuance of any such new certificate or certificates,
require (i) that the owner of such lost or destroyed certificate or
certificates, or his legal representative give the Corporation and its transfer
agent or agents, registrar or registrars a bond in such form and amount as the
Board of Directors may direct as indemnity against any claim that may be made
against the Corporation and its transfer agent or agents, registrar or
registrars, or (ii) that the person requesting such new certificate or
certificates obtain a final order or decree of a court of competent jurisdiction
as to his right to receive such new certificate or certificates.
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SECTION 4. Transfer of Shares. Shares of stock shall be transferred on the
books of the Corporation by the holder thereof or by his attorney thereunto duly
authorized upon the surrender and cancellation of certificates for a like number
of shares.
SECTION 5. Regulations Governing Transfer of Shares. The Board of Directors
may make such regulations as it may deem expedient concerning the issue,
transfer and registration of stock.
SECTION 6. Appointment of Transfer Agent, Registrar. The Board may appoint
a Transfer Agent or Transfer Agents and Registrar or Registrars for transfers
and may require all certificates to bear the signature of either or both.
ARTICLE IX
Miscellaneous
SECTION 1. Inspection of Books. The Board of Directors or the Executive
Committee shall determine from time to time whether and, if allowed, when and
under what conditions and regulations the accounts and books of the Corporation
(except such as may by statute be specifically open to inspection), or any of
them shall be open to the inspection of the stockholders, and the stockholders'
rights in this respect are and shall be restricted and limited accordingly.
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SECTION 2. Corporate Seal. The corporate seal shall have inscribed thereon
the name of the Corporation, the year of its organization, and the words
"Corporate Seal, Delaware".
SECTION 3. Fiscal Year. The fiscal year shall begin on the first day of
January of each year.
SECTION 4. Waiver of Notice. Whenever by statute, the provisions of the
Restated Certificate of Incorporation, or these by-laws, the stockholders, the
Board of Directors or any committee established by the Board of Directors in
accordance with these by-laws are authorized to take any action after notice,
such notice may be waived, in writing, before or after the holding of the
meeting at which such action is to be taken, by the person or persons entitled
to such notice or, in the case of a stockholder, by his attorney thereunto
authorized.
ARTICLE X
Amendments
SECTION 1. By Stockholders. These by-laws, or any of them, may be amended,
altered, changed, added to or repealed at any regular or special meeting of the
stockholders, by the affirmative vote of a majority of the shares of stock then
issued and outstanding.
SECTION 2. By the Board of Directors. The Board of Directors, by
affirmative vote of a majority of its members, may, at any regular or special
meeting, amend, alter, change, add to
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or repeal these by-laws, or any of them, but any by-laws made by the Directors
may be amended, altered, changed, added to or repealed by the stockholders.
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