THE SERVICEMASTER COMPANY
BYLAWS
(amended as of May 9, 2005)
ARTICLE ONE
The Company
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Section 1.1 Scope of these Bylaws. These Bylaws govern The
ServiceMaster Company, a Delaware corporation (the "Company"), its stockholders
and its Board of Directors (the "Board") and the committees of the Board.
Section 1.2 Organization. The Company was originally incorporated in
Delaware on September 10, 1991 with the name "ServiceMaster Incorporated of
Delaware." The Company's Certificate of Incorporation was restated on November
6, 1997 in order among other things to change the Company's name to "The
ServiceMaster Company."
ARTICLE TWO
Offices
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Section 2.1 Registered Office; Registered Agent. The registered office
of the Company in the State of Delaware shall be at 306 South State Street,
Dover, Delaware. The name of the Company's registered agent at such address
shall be Corporation Trust Company.
Section 2.2 Offices. The Company may have offices at such places, both
within and without the State of Delaware or Illinois, as the Board may from time
to time determine or as the business of the Company may require.
ARTICLE THREE
Meetings of Stockholders
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Section 3.1 Annual Meeting. An annual meeting of the stockholders shall
be held once each calendar year for the purpose of electing directors and
conducting such other business as may properly come before the meeting. The
date, time and place of the annual meeting shall be determined by resolution of
the Board.
Section 3.2 Special Meetings. Special meetings of stockholders may be
called by the Board. The Board shall have the right to determine the business to
be transacted at any special meeting and no issue or matter may be acted upon by
any stockholders at any special meeting unless such issue or matter has been
approved by the Board for vote by stockholders at that meeting.
Section 3.3 Place of Meetings. The Board may designate any place,
either within or without the State of Delaware, as the place of meeting for any
annual meeting or for any special meeting of the stockholders called in
accordance with these Bylaws. If no designation is made, or if a special meeting
is otherwise called, the place of meeting shall be the Company's principal
executive office.
Section 3.4 Governing Rules for Meetings.
(a) Presiding Officer. The Chairman shall preside at every meeting of
the stockholders. If the Chairman shall be unwilling or unable to preside at any
particular meeting of the stockholders, a Corporate Officer shall preside at
that meeting. If neither the Chairman nor a Corporate Officer shall be willing
and able to preside at any particular meeting of the stockholders, then an
individual designated by the Board shall preside at that meeting. The individual
authorized to preside at any particular stockholders meeting under or pursuant
to the provisions in this paragraph (a) shall be the "Presiding Officer" for
that meeting for purposes of these Bylaws and for all other relevant purposes.
(b) Rules and Decisions. The Presiding Officer shall have the power to
make rules and decisions with respect to the conduct of every meeting of the
stockholders, including (but not limited to) rules and decisions which:
(i) govern the order and conduct of business at the meeting;
(ii) determine whether any particular person is a qualified
candidate for election to the Board at that meeting under the standards
prescribed in these Bylaws and such other standards as the Presiding
Officer shall determine to be applicable;
(iii) determine whether the proponent of any other proposal is
entitled to obtain a vote by stockholders on that proposal at that
meeting under the standards prescribed in these Bylaws and such other
standards as the Presiding Officer shall determine to be applicable;
(iv) govern discussion of the issues to be voted upon at the
meeting including the time limits which shall apply for purposes of
discussion;
(v) determine whether and to what extent discussion will be
allowed at the meeting on matters on which voting will not occur at
that meeting;
(vi) determine the validity and effect of proxies present at
the meeting;
(vii) govern taking and counting votes at such meeting;
(viii) otherwise govern the conduct of such meeting; and
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(ix) resolve any other questions which may be raised at such
meeting.
All such rules and decisions adopted by the Presiding Officer shall be binding
upon all persons concerned and shall apply for purposes of the stockholder
meeting involved. The Presiding Officer shall have the right to delegate any of
the powers contemplated by this Section 3.4 to such other person or persons as
the Presiding Officer deems desirable.
(c) Appointment and Responsibilities of Inspectors. The Presiding
Officer or the Board shall have the power to appoint an organization or persons
as inspector for purposes of all or any one or more of the votes be to taken at
that meeting. The inspector shall be responsible for tallying and certifying the
vote taken on any matter at such meeting for which it is responsible. The
Presiding Officer or the Board may also delegate to the inspector the right to
decide all questions touching upon the qualification of voters, the validity of
proxies and ballots and the acceptance or rejection of votes, and other similar
issues.
(d) Authority over Issues. The Presiding Officer shall be entitled at
his or her discretion to consult the Board on any issue over which the Presiding
Officer is granted authority in these Bylaws. The Board on its own initiative
may assume responsibility for any issue over which authority is delegated to the
Presiding Officer and if it does so, the decision by the Board shall control
such issue. Until and unless the Board elects at its own initiative to assume
responsibility for any issue delegated to the Presiding Officer, the Presiding
Officer shall have the full authority over that issue delegated by these Bylaws.
In no event shall the stockholders present at any particular meeting or anyone
else be entitled to require the Presiding Officer to submit any issue, over
which he or she has decision making authority, for decision by the Board or to
override any decision by the Presiding Officer.
Section 3.5 Notice. Whenever stockholders are required or permitted to
take action at a meeting, written or printed notice stating the place, date,
time, and, in the case of special meetings, the purpose or purposes, of such
meeting, shall be given to each record stockholder entitled to vote at such
meeting not less than 10 days before the date of the meeting. All such notices
shall be delivered, either personally or by mail or by other means reasonably
selected by or at the direction of the Board or any Corporate Officer, including
but not limited to (i) first class or express class United States mail, (ii)
private courier service, (iii) telecopy transmission, and (iv) electronic mail.
Such notice shall be deemed to be given when it is mailed, when placed into the
hands of a courier service, or when transmission of the notice is otherwise
initiated by any means permitted by the preceding sentence. Attendance of a
person at a meeting shall constitute a waiver of notice of such meeting, except
when the person attends 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.
Section 3.6 Record Stockholders.
(a) Record Dates for Meetings. In order that the Company may determine
the stockholders entitled to notice of or to vote at any meeting of stockholders
or any adjournment
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thereof, the Board may fix a record date. The record date as so fixed shall not
precede the date on which the resolution fixing the record date is adopted by
the Board and shall not be more than sixty nor less than ten days before the
date of such meeting. If no record date is fixed by the Board, the record date
for determining stockholders entitled to notice of or to vote at a meeting of
stockholders shall be the close of business on the next day 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.
(b) Record Dates for Other Purposes. In order that the Company may
determine the stockholders entitled to receive payment of any dividend or other
distribution or allotment or any rights or the stockholders entitled to exercise
any rights in respect of any change, conversion or exchange of stock, or for the
purposes of any other lawful action, the Board may fix a record date. The record
date as so fixed shall not precede the date upon which the resolution fixing the
record date is adopted by the Board and shall be not more than sixty days prior
to such action. If no record date is fixed by the Board, the record date for
determining stockholders for any such purpose shall be at the close of business
on the day on which the Board adopts the resolution relating thereto. The person
in whose name shares shall be registered on the record date shall be entitled to
receive payment of any dividend or other distribution or allotment or any rights
or the stockholders entitled to exercise any rights in respect of any change,
conversion or exchange of stock, or for the purposes of any other lawful action
for which the record date shall be established regardless of whether the shares
shall have been sold or transferred to someone else after the record date and
regardless of any other fact or circumstance.
(c) Close of Business. Each reference to a record date in these Bylaws
or in other materials relating to any meeting or action for which such record
date is relevant shall mean the close of business on the date involved.
(d) Stockholder Lists. The Company shall cause to be created before
every meeting of the stockholders, a complete list of the stockholders entitled
to vote at that meeting arranged in alphabetical order, showing the address of
each stockholder and the number of shares registered in the name of each
stockholder (the "stockholder list"). The stockholder 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 10 days prior to the meeting,
at the principal executive office of the Company. The stockholder list shall
also be produced and kept at the time and place of the meeting during the whole
time thereof, and may be inspected by any stockholder who is present. The
Company shall also make the stockholder list available for such period, in such
place, and at such times as may be required by applicable law.
(e) Voting Class. If only one class of stock is entitled to be voted on
any particular issue on which a stockholder vote shall be taken at any
particular stockholders meeting, then the term "voting class" as used in these
Bylaws refers to that class when it is applied to that particular issue. If
shares in two or more classes are to be voted together without separate class
votes on any particular issue at any particular stockholders meeting, then all
of those classes shall be deemed to constitute a single "voting class" for
purposes of that issue under these Bylaws.
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The voting class which consists of or includes the common stock shall be deemed
the "common voting class."
(f) Definition of the Term "Record Shares." The "record shares" for
purposes of any issue upon which a vote shall be taken at any stockholders
meeting shall be the shares in every voting class entitled to vote on that issue
which were outstanding on the record date for that meeting.
(g) Record Holders. Each stockholder shall be entitled to vote, on each
issue on which stockholder votes shall be taken at any particular stockholders
meeting, the record shares in the voting class or classes for that issue which
were registered in the name of that stockholder on the record date for that
meeting and which are entitled to vote on that issue, and such stockholder shall
be deemed to be the "record holder" of those shares for purposes of the meeting.
(h) Proxies. A record holder shall have the right to authorize another
person to vote such holder's record shares at any meeting, provided (i) such
record holder shall execute a proxy in writing or as may be permitted by law
authorizing such person to vote those record shares and (ii) such proxy shall be
delivered to the officer or agent designated by the Company for the collection
of proxies and shall comply with such rules as the Presiding Officer or the
Board or the inspector shall impose governing proxies.
Section 3.7 Quorum Requirements.
(a) Need to Establish a Quorum. A quorum must be established for a
stockholders meeting before valid stockholder votes can be taken at that meeting
for election of members to the Board or on any routine issue (as defined in
section 3.8(a)).
(b) Establishment of a Quorum. A quorum shall be deemed established for
any meeting if record shares in the common voting class representing a majority
of the votes attributable to the record shares in the common voting class are
represented in person or by proxy at that meeting. The determination by the
Presiding Officer that a quorum has been established for any particular meeting
shall be binding and conclusive on all persons concerned unless (i) an objection
shall be made in writing at that meeting by a stockholder entitled to vote at
that meeting and (ii) the person so objecting shall be able to prove by clear
and convincing evidence that a quorum has not been established for that meeting.
(c) Maintenance of a Quorum. Once a quorum shall be established at any
stockholders meeting, such quorum shall be deemed to be established for purposes
of that meeting (including any resumption of that meeting convened after
adjournment) regardless of whether the holders of shares shall thereafter leave
the meeting (or not be present at any resumption of that meeting) in sufficient
number that the number of shares remaining at such meeting shall be lower than
the number which would have been originally required to establish a quorum for
that meeting.
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Section 3.8 Voting Requirements for Routine Issues.
(a) Definition. For purposes of these Bylaws, any issue upon which a
stockholder vote shall be taken at any stockholders meeting shall be deemed a
"routine issue" if it does not involve the election of directors and if no
special voting requirements (identified as prescribed in Section 3.10) apply to
that issue.
(b) Vote Required. Every routine issue shall be deemed to have been
approved at any particular stockholders meeting if a majority of the votes cast
at that meeting with respect to that issue are cast in favor of that issue.
Shares specifically voted to abstain on any particular issue shall be counted in
determining the number of votes cast with respect to that issue and shall
accordingly have the same effect as if cast against that issue. If a proxy card
or similar document solicited by the Company is signed and dated with no votes
marked or otherwise indicated, the shares represented by the proxy card or
document shall be voted in accordance with the recommendation of the Company or
the Board, as set forth in the relevant proxy statement. However, if a proxy
card or similar document is specifically indicated as not voting with respect to
any issue, those shares shall not be deemed to have been cast with respect to
that issue (regardless of whether such shares are otherwise deemed to be
represented or present at that meeting) and accordingly shall not be counted in
determining the number of votes required to adopt or approve such issue.
Section 3.9 Voting Requirements for Election of Directors (Reference to
Section 4.5). Reference is made to Section 4.5 of these Bylaws for the voting
requirements for the election of directors.
Section 3.10 Voting Requirements for Special Issues.
(a) General Definition. For purposes of these Bylaws, each of the
following matters shall be deemed a "special issue": (i) every matter designated
in the Delaware Corporation Law, in the Certificate of Incorporation of the
Company, or in these Bylaws as requiring a vote higher than that specified in
the Section 3.8 with respect to any particular issue; and (ii) every matter
which is the subject of a requirement which is imposed by any agreement to which
the Company may become subject or which the Board otherwise determines to be
applicable to a particular issue upon which a vote is to be taken at any
particular stockholders meeting and which requires a vote higher than that
specified in Section 3.8 with respect to that particular issue.
(b) Other Matters Constituting Special Issues. In addition to the
special issues identified in paragraph (a), the Board at its discretion may
choose to establish a vote requirement as the minimum required to approve or
take any particular action at a particular stockholders meeting, and if the
Board shall choose to do so, the action shall not be deemed to have been
approved or taken unless the vote requirement established by the Board for that
issue shall be achieved. Any issue with respect to which such requirement
applies shall also be deemed to be a "special issue" for purposes of these
Bylaws.
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(c) Approval of Special Issues. Every special issue governed shall be
deemed approved at any particular stockholders meeting if it receives the
stockholder votes required by every special voting requirement applicable to
that particular issue and shall be deemed defeated if it does not receive at
least that number of stockholder votes.
(d) Inapplicability of Section 3.7. The quorum requirements in Section
3.7 shall not apply to voting on any issue subject to special voting
requirements.
Section 3.11 Meeting Adjournment.
(a) Authority of the Presiding Officer. The Presiding Officer shall
have the authority to adjourn any stockholders meeting at any time (whether or
not a quorum is present), to determine whether the meeting will resume or
whether the adjournment is final, and if the meeting is to resume, to determine
the time and place at which the meeting will resume.
(b) Stockholder Votes. No stockholder vote or other business shall
occur after a stockholders meeting has been adjourned unless and until the
meeting shall be resumed pursuant to the direction of the Presiding Officer. If
the Presiding Officer shall determine to resume an adjourned meeting any
stockholder vote or other business may be transacted at the resumed meeting that
could have been transacted at the original meeting if the requisite number of
shares had been present at the original meeting.
(c) Adjourned Meetings. When a meeting is adjourned to another time and
place, notice need not be given of the adjourned meeting if the time and place
thereof are announced at the meeting at which the adjournment is taken. The
requirement that the record date for any particular meeting shall not be more
than sixty days before the date of such meeting shall be satisfied if the
initial meeting shall be convened within that sixty day period and if that
initial meeting shall be adjourned, the same record date may be used to
determine the stockholders entitled to vote at any resumption of that meeting
even if that resumption occurs more than sixty days after that record date.
Section 3.12 No Action by Consent. A holder of common stock or any
other class of stock at any time issued by the Company shall not have the right
to take action by written consent. Rather, stockholders shall only have the
right to act with respect to any particular issue at a meeting of stockholders
at which that issue is properly up for a vote by stockholders.
Section 3.13 Stockholder Proposals.
(a) Right to Make Proposals; Qualified Stockholder Proposals.
Stockholders shall be entitled to make proposals to be voted upon by
stockholders at an annual meeting provided that they comply with the
procedures required by this Section 3.13. Only those proposals which
satisfy all requirements specified in this Section 3.13 shall be deemed
"qualified stockholder proposals."
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(b) Requirements for Qualified Stockholder Proposals. In order for a
proposal to constitute a "qualified stockholder proposal," all of the
following requirements must be satisfied:
(1) The proposal must be made for submission at an annual meeting of
stockholders;
(2) The proposal must be a proper subject for stockholder action. The
Company shall be entitled to determine that any proposal which
the stockholder is not entitled to have included in the Company's
proxy statement for the meeting under the Securities Exchange Act
of 1934 (the "Exchange Act") and the regulations issued by the
Securities and Exchange Commission (which are collectively herein
called the "SEC Proxy Rules") is not a proper subject for
stockholder action;
(3) The proposal must be made by a stockholder who shall be a record
holder on the record date for that meeting and at that meeting of
shares entitled to be voted for the proposal (a "proposing
stockholder");
(4) The proposing stockholder must deliver a written notice
identifying such proposal to the office of the Company's
Corporate Secretary at the Company's principal executive office
which provides the information required by these Bylaws which is
timely under the standards given in these Bylaws for stockholder
nominations of director candidates for an annual meeting;
(5) Such stockholder's proposal notice shall: (i) contain a
description of the proposal, the reasons for the proposal and any
material interest in such proposal by the proposing stockholder
or the beneficial owner of the stockholder's record shares; (ii)
contain an affirmation by the proposing stockholder that the
stockholder satisfies the requirements specified in this section
for presentation of such proposal; and (iii) as to the
stockholder making the proposal and the beneficial owner, if any,
on whose behalf the proposal is made (x) the name and address of
such stockholder, as they appear on the Company's books, and of
such beneficial owner and the telephone number at which each may
be reached during normal business hours through the time for
which the meeting is scheduled and (y) the class and number of
shares of the Company which are owned beneficially and of record
by such stockholder and such beneficial owner; and
(6) The proposing stockholder and the beneficial owner shall provide
such other information as any Corporate Officer shall reasonably
deem relevant within such time limits as any Corporate Officer
shall reasonably impose for such information.
(c) Conformity with SEC Proxy Rules. Nothing in these Bylaws shall be
deemed to prohibit a stockholder from including any proposals in the
Company's proxy statement to the extent such inclusion shall be required by
the SEC Proxy Rules or to lessen any obligation by any stockholder to
comply with the SEC Proxy Rules. Conversely, neither the fact that a
stockholder's nominee qualifies as a qualified candidate nor the fact that
a stockholder's proposal qualifies as a qualified proposal under these
Bylaws shall obligate the Company to endorse that
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candidate or proposal or (except to the extent required by the SEC Proxy
Rules) to provide a means to vote on that proposal on proxy cards solicited
by the Company or to include information about that proposal in the
Company's proxy statement.
ARTICLE FOUR
Directors
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Section 4.1 General Powers. The business and affairs of the Company
shall be managed by or under the direction of the Board. In addition to the
powers and authorities expressly conferred upon it by these Bylaws, the Board
may exercise all such powers of the Company and do all such lawful acts and
things as are not by statute or by the Certificate of Incorporation or by these
Bylaws directed or required to be exercised or done exclusively by the
stockholders.
Section 4.2 Number of Directors. Until otherwise determined by the
Board acting pursuant to Section 4.4, the number of positions on the Board shall
be three (3).
Section 4.3 Division of the Board into Classes. The Board shall be
divided into three classes in accordance with the Certificate of Incorporation.
The positions within each class shall be the same in number as reasonably
practicable. Directors within a given class shall be designated as the Class of
[Year], with the entry for Year being the year of the next triennial election of
directors of that class.
Section 4.4 Board's Power to Alter the Number of Directors and the Size
of Classes. The Board shall have the power (within the limitations prescribed by
the Certificate of Incorporation) by a resolution adopted by not less than a
majority of all sitting directors at the time of such adoption to alter at any
time and from time to time (i) the total number of directorship positions on the
Board and (ii) the number of directorship positions in any of the three classes
of directors established by the Certificate of Incorporation. Except as
otherwise expressly provided in the Certificate of Incorporation, from the
adoption of any particular resolution in the manner provided in the preceding
sentence until the adoption in the manner prescribed by the preceding sentence
of any subsequent resolution altering the results of the particular resolution,
(i) the total number of directorship positions on the Board shall be equal to
the number specified in the particular resolution and (ii) the number of
directorship positions in each of the three classes of directors established by
the Certificate of Incorporation shall be the number established in the
particular resolution.
Section 4.5 Election of Directors by Stockholders.
(a) Election by Plurality Vote. Qualified candidates (as hereinafter
defined) for election as directors at any meeting of the stockholders of the
Company shall be elected by plurality vote. Accordingly, if votes are cast for
more individuals than the number of positions to be filled at that meeting, then
a qualified candidate shall be deemed elected to one of those positions if the
number of qualified candidates who received more votes than that individual are
less than the number of positions on the Board which are to be filled at that
meeting.
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(For example, if five positions on the Board were up for election at any
particular stockholders meeting, then the five qualified candidates who receive
more votes than any other qualified candidates shall be deemed elected at that
meeting). Without limiting by implication the generality of the preceding
provision, it shall not be necessary for election to the Board that a candidate
receive a majority of the votes comprising the quorum for the meeting so long as
the individual receives a number of votes sufficient for election under the
terms of this paragraph (a).
(b) Number of Votes Cast by a Stockholder. Each stockholder shall be
entitled to cast with respect to each position on the Board to be elected by
stockholders at that meeting a number of votes attributable to the record shares
in the common voting class held of record by that stockholder at the relevant
record date and such stockholder may distribute those votes among qualified
candidates for election to that position in such manner as such stockholder may
wish.
(c) No Cumulative Voting. Voting for directors shall not be cumulative.
Accordingly, the maximum number of votes a stockholder shall be entitled to cast
for any particular qualified candidate shall not exceed the number of votes
attributable to the record shares in the common voting class held of record by
that stockholder at the relevant record date.
(d) Effective Voting Limited to Qualified Candidates. Only qualified
candidates may be elected to the Board at any particular stockholders meeting.
Votes cast in favor of an individual who is not a qualified candidate shall not
be effective to elect that individual to the Board regardless of whether (i)
that individual receives a greater number of votes than qualified candidates who
are elected to the Board under the preceding provisions of this section or (ii)
no other individual receives any votes at that meeting (which might be the case
if an individual were proposed for election to a vacant position on the Board at
a special meeting which was not called by the Board for the purpose of electing
directors or for which no qualified candidate was nominated).
(e) Identification of Qualified Candidates. An individual shall be
deemed a qualified candidate for election to the Board at any particular
stockholders meeting if that individual (i) is younger than age 70 at the
date he or she is to be elected and (ii) shall have been nominated for election
by the Board or shall have been nominated for election in a manner which
satisfies all of the requirements specified in paragraph (g)of this Section 4.5.
(f) Status of Non-Independent Candidates. As used in this paragraph (f),
the term "non-independent candidate" as applied to any particular election of
directors means an individual who satisfies the conditions of clauses (i) and
(ii) of paragraph (e) above but who is not an "independent director" under the
standard prescribed in Section 7.5.2 of the Certificate of Incorporation. In the
event that in any particular election of directors Section 7.5.1 of the
Certificate of Incorporation would permit some but not all of the
non-independent candidates for director at that election to be elected to the
Board, then paragraph (d) of this Section 4.5 shall be applied to fill positions
on the Board as if all of the non-independent candidates were qualified
candidates until all positions available for non-independent candidates at that
election under Section 7.5.1 of the Certificate of Incorporation are filled. The
remaining non-independent
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candidates shall, in accordance paragraph (d) of this Section 4.5, be deemed to
be not qualified candidates.
(g) Candidates Not Nominated by the Board. In order for an individual
not nominated by the Board to be a "qualified candidate" for election to the
Board at any particular meeting of stockholders, all of the following
requirements must be satisfied:
(1) The nomination must be made for an election to be held at an
annual meeting of stockholders or a special meeting of
stockholders in which the Board has determined that candidates
will be elected by the common voting class to one or more
positions on the Board;
(2) The individual must be nominated by a stockholder who shall be
the record owner on the record date for that meeting and at
that meeting of shares entitled to be voted at that meeting
for the election of directors (a "nominating stockholder");
(3) The nominating stockholder must deliver a timely written
nomination notice to the office of the Company's Corporate
Secretary at the Company's principal executive office which
provides the information required by these Bylaws;
(4) To be timely for an annual meeting, a stockholder's notice
must be actually delivered to the Corporate Secretary's office
not later than the close of business on the 75th day nor
earlier than the close of business on the 105th day prior to
the first anniversary of the preceding year's annual meeting;
provided, however, that:
(i) if the date of the annual meeting is more than 30 days
before or more than 60 days after such anniversary
date, notice by the stockholder to be timely must be so
delivered not earlier than the close of business on the
105th day prior to such annual meeting and not later
than the close of business on the later of the 75th day
prior to such annual meeting or the 10th day following
the day on which public announcement of the date of
such meeting is first made by the Company, and
(ii) if the number of directors to be elected to the Board
is increased and there in no public announcement by the
Company naming all of the nominees for director or
specifying the size of the increased Board at least 115
days prior to the first anniversary of the preceding
year's annual meeting, a stockholder's nominating
notice required by this Bylaw shall also be considered
timely, but only with respect to nominees for any new
positions created by such increase, if (x) the
stockholder shall have nominated candidates in
accordance with the requirements in these Bylaws for
all Board positions not covered by such increase and
(y) the nomination notice for candidates to fill the
expanded positions shall be actually delivered to the
Corporate Secretary at the Company's principal
executive
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office not later than the close of business on the
10th day following the day on which such public
announcement is first made by Company;
(5) If the election is to be held at a special stockholders
meeting, a stockholder's nominating notice required by this
Bylaw shall be considered timely for that meeting if it shall
be actually delivered to the Corporate Secretary's office at
the Company's principal executive office not later than the
close of business on the 10th day following the day on which
the Company shall first publicly announce the date of the
special meeting and that a vote by stockholders will be taken
at that meeting to elect a director or directors;
(6) In no event shall the public announcement of an adjournment of
an annual meeting commence a new time period for the giving of
a stockholder's notice as described above. For purposes of
these Bylaws, "public announcement" shall mean disclosure in a
press release reported by the Dow Jones News Service,
Associated Press or comparable national news service or in a
document publicly filed by the Company with the Securities and
Exchange Commission pursuant to Section 13, 14 or 15(d) of the
Exchange Act;
(7) Such stockholder's nomination notice shall --
(i) set forth as to each person whom the stockholder
proposes to nominate for election or re-election as a
director all information relating to such person that
is required to be disclosed in solicitations of
proxies for election of directors in an election
contest, or is otherwise required, in each case
pursuant to Regulation 14A under the Exchange Act and
Rule 14a-11 thereunder;
(ii) be accompanied by each nominee's written consent to
being named in the proxy statement as a nominee and
to serving as a director if elected;
(iii) set forth the name and address of the stockholder
giving the notice and the beneficial owner of the
shares owned of record by the beneficial owner, and
the telephone number at which the Company will be
able to reach the stockholder, the beneficial owner
and each nominee during usual business hours during
the period through the meeting at which the
nomination is to take place;
(iv) set forth the class and number of shares of the
Company which are owned beneficially and of record by
such stockholder and such beneficial owner; and
(v) be accompanied by each nominee's undertaking to
affirm, at the time of his or her election to the
Board, his or her independence under the standard
prescribed in Section 7.5 of the Certificate of
Incorporation, or if the
12
nominee cannot affirm his or her independence, then
the nominee shall explain in reasonable detail why he
or she is unable to do so; and
(8) The nominating stockholder, the beneficial owner and each
nominee shall provide such other information as any Corporate
Officer shall reasonably deem relevant within such time limits
as any Corporate Officer shall reasonably impose for such
information.
Section 4.6 Vacancies. Neither the provisions of the preceding section
nor anything else shall diminish the right granted to the sitting directors to
elect individuals to fill any vacancy which shall occur for any reason.
Section 4.7 Annual Meetings. An annual meeting of the Board shall be
held each year for the appointment of officers of the Company and such other
matters as shall come before the meeting. The annual meeting of the Board shall
be held without other notice than this Bylaw on the same date as the annual
meeting of stockholders.
Section 4.8 Other Meetings. Regular meetings, other than the annual
meeting, of the Board may be held without notice at such time and at such place
as shall from time to time be determined by resolution of the Board. Special
meetings of the Board may be called by or at the request of the Chairman or a
majority of the sitting directors. The person or persons who call any special
meeting of the Board may fix the time and place at which the meeting shall be
held.
Section 4.9 Notice.
(a) General Rule. Except as provided in the immediately following
subsection (b), notice of any special meeting shall be given at least one day
prior thereto if notice is given by telephone, by fax or by other means
reasonably calculated to reach the director on the date it is transmitted, two
days prior to the meeting if it is given by Federal Express or other comparable
courier reasonably calculated to reach the director's usual address the date
after it is delivered to the courier, or five days prior to the meeting if it is
transmitted solely by mail. Notice shall be effective if it shall be sent to the
director's usual address or to any other address which any Corporate Officer
reasonably believes has a better chance to actually reach the director. Neither
the business to be transacted at, nor the purpose of, any annual, regular or
special meeting of the Board need be specified in the notice or waiver of notice
of such meeting.
(b) Emergency Meetings. In the event that the Company's Chairman
determines that the Board should consider an issue sooner than would be
permitted under the notice provisions in the immediately preceding subsection
(a), then notice shall be given by any means which are sufficient to obtain the
attendance of at least a majority of the sitting directors at the meeting and
which in the judgment of the Chairman are the most sensible means to attempting
to contact every director whom he or she believes it is possible to contact
before the meeting. The Company shall advise any director not in attendance at
that meeting of the occurrence of that meeting and actions taken at it as
promptly as it is reasonably able to communicate such information to such
director.
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Section 4.10 Quorum, Required Vote and Adjournment.
(a) General Rules. Except as otherwise provided in paragraph (b)
immediately below, a quorum for the transaction of business with respect to any
given matter at any meeting of the Board shall consist of a majority of the
number of sitting directors and the vote of a majority of directors present at a
meeting at which a quorum is present shall be the act of the Board.
(b) Special Cases. If an express provision in the Certificate of
Incorporation or Bylaws permits or requires action to be taken by the Board by
vote of a number of directors different from the number prescribed in paragraph
(a) immediately above, then the number so prescribed in such provision shall
constitute the number required for a quorum with respect to, and for approval
of, the action specified in such express provision.
(c) Adjournments. If a quorum is not present at any meeting of the
Board, the directors who are present thereat may adjourn the meeting from time
to time, without notice other than announcement at the meeting, until a quorum
shall be present.
(d) "Absolute Board Majority" Defined. The term "Absolute Board
Majority" means a majority of the sitting directors on the Board at the time as
of which the term shall be applied.
Section 4.11 Participation by Telephone. Members of the Board or any
Committee thereof may participate in and act at any meeting of the Board or
Committee through the use of a conference telephone or other communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in the meeting pursuant to this section shall
constitute presence in person at the meeting.
Section 4.12 Waiver of Notice and Presumption of Assent. Any member of
the Board or any Committee thereof who is present at a meeting shall be
conclusively presumed to have waived notice of such meeting except when such
member attends 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. Such member shall be conclusively presumed to have assented
to any action taken unless his or her dissent shall be entered in the minutes of
the meeting or unless his or her written dissent to such action shall be filed
with the person acting as the secretary of the meeting before the adjournment
thereof or shall be forwarded by registered mail to the Corporate Secretary of
the Company immediately after the adjournment of the meeting. Such right to
dissent shall not apply to any member who voted in favor of such action. No
failure to provide notice to all or any one or more of the directors shall
impair the due authorization or validity of any action (i) approved by a
majority of the sitting directors at any meeting of the Board or (ii) approved
by the majority of the members of any Board Committee at any meeting of that
Committee.
Section 4.13 Action by Written Consent. Any action required or
permitted to be taken at any meeting of the Board or of any Committee thereof,
may be taken without a meeting if all members of the Board or Committee, as the
case may be, consent thereto in writing. In the event
14
one or more positions on the Board or any Committee shall be vacant at the time
of execution of any such consent, such consent shall nevertheless be effective
if it shall be signed by all sitting directors serving as members of the Board
or such Committee at such time and if the persons signing the consent would be
able to take the action called for by the consent at a properly constituted
meeting of the Board or such Committee.
Section 4.14 Compensation. A director who is an employee of the Company
or any of its subsidiaries shall not receive any stated salary or fee for his
service as director. A director who is not an employee may receive such
compensation for his services as a director as is fixed by resolution of the
Board. Members of any Board Committee or any other committee established by the
Board may receive such compensation for their duties as Committee members as is
fixed by resolution of the Board. All directors shall be reimbursed for their
expenses incurred to attend meetings of the Board and Board Committees.
Section 4.15 Stakeholder Interests. The Board shall have the authority
to make its decisions based on a long-term perspective and in doing so shall be
entitled to make decisions which may produce short-term outcomes less favorable
than alternatives which may be available to the Company or its stockholders. The
Board in making its decisions shall be entitled to consider the interests of
stakeholders in the Company other than stockholders, including employees, areas
in which the Company maintains operations, creditors, and other persons who in
the Board's sole judgment have a legitimate stake in the Board's decision. The
Board shall have discretion to determine how to balance any interests, the
interests of stockholders, and other stakeholders in arriving at any decision.
ARTICLE FIVE
Board Committees
----------------
Section 5.1 Board Committees. The term "Board Committee" as used in
these Bylaws means any Committee comprised exclusively of directors of the
Company which is identified as a "Board Committee" either in these Bylaws or in
any resolution adopted by the Board.
Section 5.2 Standing Committees. The following committees (the
"Standing Committees") are established by these Bylaws:
Executive Committee
Audit and Finance Committee
Governance and Nominating Committee
Compensation and Leadership Development Committee.
Each Standing Committee shall have such powers and responsibilities as are
established for such Committee in this Article Five and such other powers and
responsibilities as may be delegated to such Committee by the Board. Each
Standing Committee shall be a Board Committee.
15
Section 5.3 Other Committees. The Board shall have the power to
establish committees in addition to the Standing Committees and to delegate to
any such Committee any power exercisable by the Board, provided that each such
Committee shall consist solely of directors. Unless otherwise specified in the
resolution which creates a Committee pursuant to this Section 5.3, such
Committee shall be a Board Committee.
Section 5.4 Names of Board Committees; Minutes. Each Board Committee
shall have such name or names as may be prescribed in these Bylaws or by Board
resolution. Each Committee shall keep regular minutes of its meetings and report
the same to the Board when required.
Section 5.5 Membership.
(a) Number of Members on Committees. The Board shall have the power to
establish the number of membership positions on each Board Committee from time
to time and to change the number of membership positions on such Committee from
time to time.
(b) Appointments and Removals. The Board shall have the power, subject
to the recommendation of the Governance and Nominating Committee, to appoint the
membership of each Board Committee. No member of the present or former
management of the Company shall serve on any Standing Committee except the
Executive Committee. A person's membership on any Board Committee shall
automatically terminate when such person ceases to be a director of the Company.
Section 5.6 Committee Rules. Each Committee of the Board may fix its
own rules of procedure and shall hold its meetings as provided by such rules,
except as may otherwise be provided by a resolution adopted by the Board. Unless
otherwise provided in such a resolution, the presence of at least a majority of
the members of the Committee shall be necessary to constitute a quorum. In the
event that a member is absent or is otherwise unable or unwilling to act and no
designated alternate member is available and willing and able to act, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not such member or members constitute a quorum, may unanimously
appoint another member of the Board to act at the meeting in place of any such
absent or disqualified member.
Section 5.7 Powers. Except as otherwise provided in Section 5.8 hereof,
each Board Committee, shall, as provided in a resolution of the Board (including
a charter of a Board Committee that is approved by the Board) or in these
Bylaws, have and may exercise all the powers and authority of the Board in the
management of the business and affairs of the Company.
Section 5.8 Reserved Powers. No Board Committee or any other committee
shall have the right or power (i) to amend, alter or repeal any resolution
adopted by the Board which by its terms precludes such action by such Committee
or to take any action which has the same substantive effect or (ii) to take any
action which is not permitted under the Delaware General Corporation Law to be
taken by committees of boards of directors.
16
Section 5.9 Vote Required. The members holding at least a majority of
the positions on any Board Committee shall constitute a quorum for purposes of
any meeting of such Committee. The affirmative vote of members holding at least
a majority of the positions on any Board Committee shall be necessary and
sufficient to approve any action within the Committee's power, and any action so
approved by such a majority shall be deemed to have been taken by the Committee
and to be the act of such Committee.
Section 5.10 Governance. After considering the recommendation of the
Governance and Nominating Committee, the Board shall designate the person who is
to serve as chairman of any Board Committee. In the absence of any such
designation by the Board, the members of the Committee may either designate one
member of the Committee as its chairman or elect to operate without a chairman.
Each Board Committee may appoint a secretary who need not be a member of the
Committee or a member of the Board (provided that any secretary who is not a
member of the Committee shall not have the right to vote on any matter or count
for purposes of determining whether a quorum exists for purposes of action by
such Committee). Each Board Committee shall have the right to establish such
rules and procedures governing its meetings and operations as such Committee
shall deem desirable provided such rules and procedures shall not be
inconsistent with the Certificate of Incorporation, these Bylaws, or any
direction to the Committee issued by the Board.
Section 5.11 Executive Committee.
(a) Duties and Responsibilities. The Executive Committee shall have the
right and power to grant any authorization or approval and take any other action
which the Board could take (including but not limited to any function expressly
delegated to the Board in these Bylaws) except for (i) any action which a Board
Committee is expressly prohibited from taking under the provisions of Section
5.8 or (ii) any action establishing the compensation for any member of the
Executive Committee.
(b) Membership. The Chairman, Chief Executive Officer and the chairman
of each Standing Committee shall serve as members of the Executive Committee.
The Board may elect from one of its members a Chairman of the Executive
Committee. Subject to the preceding sentence, the membership of the Executive
Committee shall be determined as provided in Section 5.5.
Section 5.12 Audit and Finance Committee.
(a) Duties and Responsibilities. The Audit and Finance Committee shall
approve and recommend for approval by the Board a charter setting forth such
Committee's duties and responsibilities. With respect to its audit function, the
Audit and Finance Committee assists the Board in its oversight of the integrity
of the Company's financial statements; the Company's compliance with regulatory
requirements; the independent auditor's qualifications and independence; the
performance of the Company's internal audit function; and prepares an audit
committee report for inclusion in the Company's proxy statement. With respect to
its finance
17
function, the Audit and Finance Committee assists the Board in its
oversight of financial matters affecting the Company. The Audit and Finance
Committee shall exercise such other duties and responsibilities as set forth in
the Audit and Finance Committee Charter and exercise such other authority which
shall from time to time be delegated to the Committee by the Board or which the
Committee shall deem reasonably related to any authority delegated to the
Committee in or pursuant to this Section 5.
(b) Membership. The Audit and Finance Committee shall be made up of at
least three members of the Board who are "independent" within the meaning of the
rules of the New York Stock Exchange. Subject to the preceding sentence, the
membership of the Audit and Finance Committee shall be determined as provided in
Section 5.5.
Section 5.13 Governance and Nominating Committee.
(a) Duties and Responsibilities. The Governance and Nominating
Committee shall approve and recommend for approval by the Board a charter
setting forth such Committee's duties and responsibilities. The Governance and
Nominating Committee develops and recommends to the Board the corporate
governance principles applicable to the Company; identifies individuals
qualified to be Board members, consistent with the criteria approved by the
Board; selects or recommends that the Board select the director nominees for the
next annual meeting of stockholders; and oversees the evaluation of the Board
and its Committees. The Governance and Nominating Committee shall accept
nomination of candidates to fill the Board from the stockholders of the Company
if such nominations are submitted within the time limits and in the manner
prescribed in Section 4.5(g). The Governance and Nominating Committee shall
exercise such other duties and responsibilities as set forth in the Governance
and Nominating Committee Charter and exercise such other authority which shall
from time to time be delegated to the Committee by the Board or which the
Committee shall deem reasonably related to any authority delegated to the
Committee in or pursuant to this Section 5.
(b) Membership. The Governance and Nominating Committee shall be made
up of at least three members of the Board who are not employees of the Company.
Subject to the preceding sentence, the membership of the Governance and
Nominating Committee shall be determined as provided in Section 5.5.
Section 5.14 Compensation and Leadership Development Committee.
(a) Duties and Responsibilities. The Compensation and Leadership
Development Committee shall approve and recommend for approval by the Board a
charter setting forth such Committee's duties and responsibilities. The
Compensation and Leadership Development Committee has direct responsibility to
review and approve corporate goals and objectives relevant to Chief Executive
Officer compensation; evaluate the Chief Executive Officer's performance in
light of his competencies, corporate goals, objectives and potential; determine
and approve the Chief Executive Officer's compensation level based on such
evaluation; and prepare a compensation committee report on executive officer
compensation for inclusion in the Company's proxy statement. The Compensation
and Leadership Development Committee shall
18
exercise such other duties and responsibilities as set forth in the Compensation
and Leadership Development Committee Charter and exercise such other authority
which shall from time to time be delegated to the Committee by the Board or
which the Committee shall deem reasonably related to any authority delegated to
the Committee in or pursuant to this Section 5.
(b) Membership. The Compensation and Leadership Development Committee
shall be made up of at least three members of the Board who are "outside
directors" within the meaning of the Internal Revenue Service regulations and
"non-employee directors" within the meaning of Rule 16b-3 under the Securities
Exchange Act of 1934. Subject to the preceding sentence, the membership of the
Compensation and Leadership Development Committee shall be determined as
provided in Section 5.5.
ARTICLE SIX
Officers
--------
Section 6.1 Corporate Officers. The Company shall have the following
Corporate Officers: one Chairman, one Chief Executive Officer, one President,
one Chief Financial Officer, one or more Vice Presidents, one General Counsel,
one Corporate Secretary, one Controller, and one Treasurer. The term "Corporate
Officer" whenever used in these Bylaws means only the officers identified in the
preceding sentence. Any number of Corporate Officer positions may be held by the
same person. In its discretion, the Board may choose not to fill any Corporate
Officer position for any period as it may deem advisable.
Section 6.2 Appointment and Term of Office. The Corporate Officers of
the Company shall be appointed annually by the Board at its meeting held on the
date of, or its first meeting held after, each annual meeting of stockholders or
as soon thereafter as conveniently may be. Vacancies may be filled or new
offices created and filled at any meeting of the Board. Each Corporate Officer
shall hold office until a successor is duly appointed or until his or her
earlier death, resignation or removal as hereinafter provided. In case of the
absence of any officer of the Company, or for any other reason that the Board
may deem sufficient, the Board may delegate, for the time being, the powers or
duties, or any of them, of such officer to any other officer, or to any
director. The Board shall have the right to authorize the Company to enter into
employment contracts providing for the employment of any officer for a term
longer than one year, but no such contract shall preclude the Board from
removing any person from any position with the Company whenever in the Board's
judgment the best interests of the Company would be served thereby.
Section 6.3 Other Management Positions. The Board, Compensation and
Leadership Development Committee or the Chairman shall have the right to create
other management positions in addition to those designated as Corporate Officer
positions in these Bylaws, to determine the title associated with each such
management position, and to determine the scope of responsibility and authority
attributable to each position so created. Unless the Board or the Compensation
and Leadership Development Committee shall in its discretion take the initiative
in any case, the Chairman shall (i) be responsible for the selection of the
individual who shall fill
19
any management position created pursuant to this Section 6.3 and for determining
the compensation and other employment terms for such individual and (ii) shall
have the power to remove any individual from any such management position on his
or her own initiative.
Section 6.4 Removal. Any officer or agent may be removed by the Board
whenever in its judgment the best interests of the Company would be served
thereby, but such removal shall be without prejudice to the contract rights, if
any, of the person so removed. If the Chairman shall conclude that any other
Corporate Officer should be removed from office, the Chairman shall have the
power to suspend that other Corporate Officer until the Board shall be able to
act on the Chairman's recommendation to remove that other Corporate Officer.
Section 6.5 Vacancies. Any vacancy occurring in any Corporate Officer
position because of death, resignation, removal, disqualification or otherwise,
may be filled by the Board at any time.
Section 6.6 Compensation. The Compensation of all Corporate Officers
shall be reviewed by the Compensation and Leadership Development Committee. No
Corporate Officer shall be prevented from receiving such compensation by virtue
of his or her also being a director of the Company.
Section 6.7 Signature Authority. Whenever any resolution adopted by the
Company's stockholders, Board or a Board Committee shall authorize the "proper
officers," "officers," "management," or other similar management group to
execute any note, contract or other document or to take any other action or
shall generally authorize any action without specifying the officer or officers
authorized to take such action, any Corporate Officer acting alone and without
countersignatures may take such action on behalf of the Company. Any Corporate
Officer may on behalf of the Company sign any contract, report to any
governmental agency, or other instrument, except where the signing and execution
thereof shall be expressly delegated by the Board exclusively to some other
officer or agent of the Company or shall be required by law to be otherwise
signed or executed and except that the Board shall have the power by resolution
to limit the authority of any officer.
Section 6.8 Chairman. The Chairman shall, when present, preside at all
meetings of (i) the stockholders of the Company and (ii) the Board. The Chairman
shall participate in formulating the policies of the Company and shall carry out
other duties which, from time to time, are assigned by the Board.
Section 6.9 Chief Executive Officer. The Chief Executive Officer, who
may be the Chairman of the Company, shall be the Company's chief executive
officer and shall have general charge of the business, affairs and property of
the Company, and control over its officers, agents and employees; and shall see
that all orders and resolutions of the Board are carried into effect, and shall
have all authority implicit in the position of chief executive officer. The
Chief Executive Officer shall have the authority to act on behalf of the Company
in any manner and any agreement or commitment made by the Chief Executive
Officer on behalf of the Company shall be a valid and binding obligation of the
Company. The Chief Executive Officer shall have
20
such other powers and perform such other duties as may be prescribed by the
Board or as may be provided in these Bylaws.
Section 6.10 President. The President shall be the Company's president
and (subject to the direction of the Board and the Chairman) shall be generally
responsible for the day to day operating affairs of the Company. The President
shall have such other powers and perform such other duties as may be prescribed
by the Board, the Chairman or as may be provided in these Bylaws.
Section 6.11 Chief Financial Officer. The Chief Financial Officer shall
be the Company's chief financial and accounting officer and (subject to the
direction of the Board and the Chairman) shall be generally responsible for the
supervision and control of the financial affairs of the Company. The Chief
Financial Officer shall be responsible for supervision of the Company's
Controller and at any time at which the office of Controller shall be vacant
shall perform the duties of the Controller. The Chief Financial Officer shall be
responsible for supervision of the Company's Treasurer and, at any time at which
the office of Treasurer shall be vacant, shall perform the duties of the
Treasurer.
Section 6.12 General Counsel. The General Counsel shall be the
Company's chief legal officer and (subject to the direction of the Board and the
Chairman) shall be generally responsible for the supervision and control of the
legal affairs of the Company.
Section 6.13 Vice Presidents. Each Vice President shall have such
responsibility and authority as the Board, the Chairman or these Bylaws may,
from time to time, prescribe. The Board may designate any Vice President as
being senior in rank, degree or responsibility and may accord such a Vice
President an appropriate title designating his or her senior rank such as
"Executive Vice President" or "Senior Vice President" or "Group Vice President."
The Board or Chairman may assign a certain Vice President responsibility for a
designated group, division or function of the Company's business and add an
appropriate descriptive designation to his title.
Section 6.14 Corporate Secretary. The Corporate Secretary shall
(subject to the direction of the Board, the Chairman and the General Counsel):
(i) keep the minutes of the stockholders and the Board meetings in one or more
books provided for that purpose; (ii) see that all notices to the Company's
directors and stockholders are duly given in accordance with the provisions of
these Bylaws or as required by law; (iii) be custodian of the records and of the
seal of the Company and shall have the nonexclusive authority (which shall be
shared with every other Corporate Officer) to affix the Company's corporate seal
to any contract, instrument or other document executed on behalf of the Company;
(iv) keep or cause to be kept a register of the address of each stockholder as
provided by that stockholder in accordance with procedures established by or
with the approval of the Corporate Secretary or any other Corporate Officer; (v)
have general responsibility for the Company's stock transfer records; (vi)
supply in such circumstances as the Corporate Secretary deems appropriate to any
governmental agency or other person a copy of any resolution adopted by the
Company's stockholders or Board or by any Board Committee, any corporate record
or document, or other information concerning the Company or any of its officers
and certify on behalf of the Company as to the accuracy and completeness of
21
the resolution, record, document or information supplied; and (vii) such other
duties and have such other powers as the Board or the Chairman may from time to
time prescribe.
Section 6.15 Assistant Secretary. Each Assistant Secretary shall
(subject to the direction of the Board, Chairman and Corporate Secretary) assist
the Corporate Secretary in the performance of the Corporate Secretary's duties
and be entitled to exercise the powers of the Corporate Secretary. Any person
dealing with the Company shall have the right to presume (in the absence of
actual notice to the contrary) that each Assistant Secretary is entitled to
exercise the powers of the Secretary.
Section 6.16 The Controller. The Controller shall (subject to direction
of the Board, Chairman and Chief Financial Officer) have general charge of and
responsibility for: the accounting and auditing affairs of the Company; keeping
of the general and cost accounting books and records, general and supporting
ledgers and other documents and papers necessary to properly reflect the
business and corporate transactions upon the books of the Company; the clerical
and office procedures of the corporate offices; the preparation of the operating
budget for the Company; the preparation, compilation and filing of reports,
statements, statistics and other data that may be required by law or that may be
prescribed by the Board, Chairman or the Chief Financial Officer; and the
performance of such other duties and responsibilities as may be assigned to the
Controller by the Chairman or the Chief Financial Officer. The Controller shall
supply such reports and information directly to the Board's Audit and Finance
Committee as the Audit and Finance Committee shall request.
Section 6.17 Treasurer. The Treasurer shall (subject to the direction
of the Board, Chairman and Chief Financial Officer) have charge and custody of
and be responsible for all funds and securities of the Company; receive and give
receipts for monies due and payable to the Company from any source whatsoever,
and deposit all such monies in the name of the Company in such banks, trust
companies or other depositories as shall be selected by or under authority of
the Board, the Chairman, or the Chief Financial Officer; keep or cause to be
kept accurate and complete records showing any receipts and disbursement of
money or securities by the Company and showing the amount of cash and cash
equivalent investments held in any account at any given time on behalf of the
Company; and, in general, perform all of the duties incident to the office of
treasurer and such other duties as from time to time may be assigned to him or
her by the Board, Chairman or the Chief Financial Officer. The Treasurer shall
give a bond if required by the Board for the faithful discharge of his duties in
a sum and with one or more sureties satisfactory to the Board.
Section 6.18 Assistant Treasurer. Each Assistant Treasurer shall
(subject to the direction of the Board, Chairman, Chief Financial Officer and
Treasurer) assist the Treasurer in the performance of the Treasurer's duties and
be entitled to exercise the powers of the Treasurer. Each person dealing with
the Company shall have the right to presume (in the absence of actual notice to
the contrary) that each Assistant Treasurer is entitled to exercise the powers
of the Treasurer.
22
Section 6.19 Implicit Authority. In addition to the authority expressly
delegated by these Bylaws, by the Board, or by any officer pursuant to authority
granted in these Bylaws or by the Board, each Corporate Officer and every other
person appointed to a management position created in or pursuant to these Bylaws
shall have all power implicit in the office and title assigned to such person.
ARTICLE SEVEN
Capital Stock
-------------
Section 7.1 Stock Records; Transfer Agent. The Company shall appoint
one or more transfer agents and registrars under arrangements pursuant to which
the persons appointed will maintain appropriate records showing as of any given
time the name of each person in whose name any shares of the Company's capital
stock are registered, the number of shares registered in such person's name, and
such person's address.
Section 7.2 Stock Certificates. Certificates representing shares of any
class of stock issued by the Company shall be in such form as shall be
determined by the Board. Every holder of stock in the Company shall be entitled
to have a certificate, signed by, or in the name of the Company by the Chairman
and the Corporate Secretary or an Assistant Secretary certifying the number of
shares in each class owned by such holder in the Company. If such a certificate
is countersigned (1) by a transfer agent or an assistant transfer agent other
than the Company or its employee or (2) by a registrar, other than the Company
or its employee, the signature of the Chairman, Corporate Secretary, or
Assistant Secretary may be facsimiles. In case any officer or officers who have
signed, or whose facsimile signature or signatures have been used on, any such
certificate or certificates shall cease to be such officer or officers of the
Company whether because of death, resignation or otherwise before such
certificate or certificates have been delivered by the Company, such certificate
or certificates may nevertheless be issued and delivered as though the person or
persons who signed such certificate or certificates or whose facsimile signature
or signatures have been used thereon had not ceased to be such officer or
officers of the Company. Each certificate for shares shall bear a distinct
identifier capable of distinguishing it from all other certificates and relating
it to the records maintained to show shares issued by the Company.
Section 7.3 Transfers of Record Ownership. Record ownership of stock of
the Company shall only be transferred on the stockholder records upon surrender
to the Company's appointed transfer agent of the certificate or certificates for
such stock endorsed by the appropriate person or persons, with such evidence of
the authenticity of such endorsement, transfer, authorization, and other matters
as the Company may reasonably require, and accompanied by all necessary stock
transfer stamps. In that event, it shall be the duty of the Company to cause the
issuance of a new certificate to the person entitled thereto, cancellation the
old certificate or certificates, and recordation of the transaction on stock
records.
Section 7.4 Lost Certificates. The Company may authorize issuance of a
new certificate or certificates to be issued in place of any certificate or
certificates previously issued by the
23
Company alleged to have been lost, stolen, or destroyed, upon the making of an
affidavit of that fact by the person claiming the certificate of stock to be
lost, stolen, or destroyed. When authorizing such issue of a new certificate or
certificates, the Company may, in its discretion and as a condition precedent to
the issuance thereof, require the record owner of such lost, stolen, or
destroyed certificate or certificates, or his or her legal representative, to
give the Company a bond sufficient to indemnify the Company against any claim
that may be made against the Company on account of the loss, theft or
destruction of any such certificate or the issuance of such new certificate.
Section 7.5 Registered Stockholders. Prior to the surrender to the
Company of the certificate or certificates for a share or shares of stock with a
request to record the transfer of such share or shares, the Company may treat
the registered owner as the person entitled to receive dividends, to vote, to
receive notifications, and otherwise to exercise all the rights and powers of an
owner. The Company shall not be bound to recognize any equitable or other claim
to or interest in such share or shares on the part of any other person, whether
or not it shall have express or other notice thereof.
ARTICLE EIGHT
Miscellaneous
Section 8.1 Fiscal Year. The fiscal year of the Company shall be begin
on the first day of January and end on the last day of December in each year.
Section 8.2 Corporate Seal. The Board may provide a corporate seal
which, if provided, shall be in the form of a circle and shall have inscribed
thereon the name of the Company and the words "Corporate Seal, Delaware". The
seal may be used by causing it or a facsimile thereof to be impressed or affixed
or reproduced or otherwise.
Section 8.3 Voting Securities Issued by Another Company. Voting
securities in any other Company held by the Company shall be voted by any
Corporate Officer or by any person authorized to vote such securities by the
Board or any Corporate Officer. Any person authorized to vote securities shall
have the power to appoint proxies, with general power of substitution.
Section 8.4 Headings. Section headings in these Bylaws are for
convenience of reference only and shall not be given any substantive effect in
limiting or otherwise construing any provision herein.
Section 8.5 Inconsistent Provisions. The Board shall have the authority
to interpret these Bylaws and to resolve any question or issue which may arise
under these Bylaws. Whenever possible, each provision of this Bylaws shall be
interpreted in such manner as to be valid and enforceable under applicable law
and the provisions of the Certificate of Incorporation, but if any provision of
these Bylaws shall be held to be prohibited by or unenforceable under or to be
in irreconcilable conflict with applicable law or the Certificate of
Incorporation, (i) such provision shall be applied to accomplish the objectives
of the provision as originally written to the fullest
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extent permitted by law and (ii) all other provisions of these Bylaws shall
remain in full force and effect.
ARTICLE NINE
Amendments of the Bylaws
------------------------
Section 9.1 Board Amendments. The Board shall have the power to amend
these Bylaws in any manner the Board may decide provided that any such amendment
shall require the approval of 80% of the sitting directors in office at the time
such amendment is approved.
Section 9.2 Stockholder Approval. The holders of the Company's Common
Stock shall not have the power to amend or replace these Bylaws in whole or in
part unless such amendment or replacement shall be approved by the record
holders of shares representing eighty percent (80%) of the votes attributable to
shares in the common voting class outstanding at the record date used to
determine the stockholders entitled to vote on such amendment or replacement.
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