AMENDED AND RESTATED BYLAWS
OF
STILWELL FINANCIAL INC.
As amended and restated to May 8, 2002
ARTICLE I
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Offices
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Section 1. Registered Office. The registered office of the
Corporation in the State of Delaware shall be at such location within the
State of Delaware as shall from time to time be determined by the Board of
Directors.
Section 2. Other Offices. The Corporation may also have
offices at such other places both within and without the State of Delaware as
the Board of Directors may from time to time determine or the business of the
Corporation may require.
ARTICLE II
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Stockholders
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Section 1. Place of Meetings. All meetings of the stockholders
for the election of directors or for any other purpose shall be held at such
time and place, either within or without the State of Delaware, as shall be
designated from time to time by the Board of Directors and stated in the notice
of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual Meetings. The annual meeting of
stockholders shall be held on such day of such month of each year (other than a
Saturday, Sunday or holiday) as shall be determined by the Board of
Directors or, if the Board shall fail to act, by the President. At the annual
meeting the stockholders, voting as provided in the Certificate of
Incorporation, shall elect directors and transact such other business as may be
properly brought before the meeting.
Section 3. Advance Notice of Stockholder Proposed Business.
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 either (i)
specified in the notice of meeting (or any supplement thereto) given by or at
the direction of the Board of Directors, (ii) otherwise properly brought
before the meeting by or at the direction of the Board of Directors or (iii)
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 of the Corporation and such other
business must otherwise be a proper matter for stockholder action. To be
timely, a stockholder's notice must be delivered or mailed to and received at
the principal executive offices of the Corporation not later than the close
of business on the 90th calendar day nor earlier than the 120th calendar day
prior to the anniversary date of the first mailing of the Corporation's proxy
statement for the immediately preceding
year's annual meeting. 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. 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 such stockholder and (iv)
any material interest of such stockholder in such business.
Notwithstanding anything in these Bylaws to the contrary, no business
shall be conducted at the annual meeting except in accordance with the
procedures set forth in this Section 3 of Article II; provided, however,
that nothing in this Section 3 of Article II shall be deemed to preclude
discussion by any stockholder of any business properly brought before the
annual meeting in accordance with such procedures.
The Chairman of the annual meeting shall, in his or her discretion,
determine whether or not business is properly brought before the meeting in
accordance with the provisions of Section 3.
Section 4. Notices of Annual Meetings. Written notice of each
annual meeting of stockholders stating the place, date and hour of the meeting
shall be given to each stockholder entitled to vote at such meeting not less
than 10 nor more than 60 days before the date of the meeting. Notice of any
meeting of stockholders shall not be required to be given to any stockholder
who shall attend such meeting in person or by proxy, except that such notice
shall be required for any stockholder who shall attend such meeting for the
express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting was not lawfully called or
convened. Except as otherwise required by law, notice of any meeting of
stockholders following an adjournment shall not be required to be given if the
time and place thereof are announced at the meeting which is adjourned.
Section 5. Voting Lists. The officer who has charge of the
stock ledger of the Corporation shall prepare and make or cause to be prepared
and made through a transfer agent appointed by the Board of Directors, at least
10 days before every meeting of stockholders, a complete list of the
stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered
in the name of each stockholder. Such list shall be open to the examination of
any stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least 10 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 6. Special Meetings. Special meetings of the
stockholders, for any purpose or purposes, may be called only in accordance with
the Certificate of Incorporation of the Corporation.
Section 7. Quorum. The holders of a majority of the stock
issued and outstanding which are entitled to vote thereat, present in person or
represented by proxy, shall constitute a
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quorum at all meetings of the stockholders for the transaction of business
except as otherwise provided by statute, by the Certificate of Incorporation or
by these Bylaws. If, however, such quorum shall not be present or represented
at any meeting of the stockholders, the stockholders entitled to vote thereat,
present in person or represented by proxy, hall have power to adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than 30 days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
When a quorum is present at any meeting, the vote of the holders of a
majority of the stock having voting power present in person or represented by
proxy shall decide any question brought before such meeting, unless the question
is one upon which by express provision of the statutes, the Certificate of
Incorporation or these Bylaws, a different vote is required in which case such
express provision shall govern and control the decision of such question.
Section 8. Voting of Shares. The holders of Common Stock shall
have such voting rights as are provided in the Certificate of Incorporation.
The holders of Preferred Stock shall have such voting rights as may be
provided in applicable Certificates of Designation.
Section 9. Proxies. Each stockholder entitled to vote at a
meeting of stockholders or to express consent or dissent to corporate action in
writing without a meeting may authorize, either in writing or by electronic
transmission, another person or persons to act for him or her by proxy, but no
proxy shall be voted or acted upon after three years from its date, unless the
proxy provides for a longer period.
Section 10. Stock Ledger. The stock ledger of the Corporation
shall be the only evidence as to who are the stockholders entitled to examine
the stock ledger, the list required by Section 5 of this Article II or the
books of the Corporation, or to vote in person or by proxy at any meeting of
stockholders.
Section 11. Conduct of Meeting. The Chairman of the Board, or,
if none or in his or her absence, the Chief Executive Officer, the President
or one of the Vice Presidents, shall call meetings of the stockholders to
order and act as Chairman of such meeting. In the absence of all these
officers, the Board of Directors may appoint a Chairman of the meeting. The
Secretary of the Corporation, or in his or her absence, an Assistant
Secretary, if any, or, in the absence of both the Secretary and Assistant
Secretaries, any person whom the Chairman shall appoint, shall act as
secretary of the meeting of the stockholders. The conduct of any meeting of the
Stockholders shall be governed by such rules, regulations and procedures as the
Chairman of the meeting, in his or her sole and exclusive discretion shall
determine.
Section 12. Inspectors of Election. For each meeting of
stockholders there shall be appointed by the Board of Directors or by the
Chairman of the meeting three (3) inspectors of election. If any inspector
shall fail or be unable to serve as inspector or for any reason be unable to
complete his or her duties, an alternate inspector shall be appointed by
the Board of Directors or the Chairman of the meeting. The inspectors of
election shall examine and canvass the proxies and ballots, and make and submit
a signed report of the votes cast at the meeting, which shall be entered at
large upon the records.
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Section 13. Inspectors Oath. An inspector, before he enters
into the duties of his or her office, shall take and subscribe an oath
substantially in the following form before any officer authorized by law to
administer oaths:
I do solemnly swear that I will execute the duties of an inspector
of the election now to be held with strict impartiality and according
to the best of my ability.
ARTICLE III
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Directors
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Section 1. Number, Tenure and Qualifications. The number of
directors which shall constitute the whole board shall be as set forth in the
Certificate of Incorporation. Directors need not be stockholders.
The Board of Directors shall be divided into three classes as nearly
equal in number as reasonably possible. At each annual meeting of stockholders,
successors to directors of the class whose terms then expire shall be elected to
hold office for a term expiring at the third succeeding annual meeting of
stockholders. If the number of directors is changed, ny newly created
directorships or any decrease in directorships shall be so apportioned among
the classes as to make all classes as nearly equal in number as possible. Any
additional director of any class elected to fill a vacancy resulting from an
increase in such class shall hold office for a term that shall coincide with the
remaining term of the class.
Section 2. Nomination of Directors. Only persons who are
nominated in accordance with the following procedures shall be eligible for
election as directors at an annual meeting of stockholders. Nominations of
persons for election to the Board of Directors may be made at an annual meeting
of stockholders by the Board of Directors or by any nominating committee or
person appointed by the Board of Directors or by any stockholder of the
Corporation entitled to vote for the election of directors at the annual meeting
who complies with the notice procedures set forth in this Section 2.
Nominations by stockholders shall be made pursuant to timely written notice to
the Secretary of the Corporation. To be timely, a stockholder's notice must be
delivered to or mailed and received at the principal executive offices of the
Corporation not later than the close of business on the 90th calendar day nor
earlier than the 120th calendar day prior to the anniversary date of the first
mailing of the Corporation's proxy statement for the immediately preceding
year's annual meeting. 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. Such stockholder's notice to the
Secretary shall set forth (a) as to each person whom the stockholder proposes
to nominate for election or re-election 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
Regulation 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 beneficially owned by the stockholder. The
stockholder's notice shall include a signed consent of each such nominee to
serve as a director of the Corporation, if elected. The Corporation may
require any proposed
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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. No person shall be eligible for election as a director by the
stockholders unless nominated in accordance with the procedures set forth
herein.
The Chairman of the meeting shall, in his or her discretion, determine
whether or not a nomination was made in accordance with the foregoing procedure,
and if the Chairman should determine that the nomination was not made in
accordance with the foregoing procedure, the Chairman shall so declare to
the stockholders present at the meeting and the defective nomination shall be
disregarded. In addition to the foregoing provisions of this Bylaw, a
stockholder shall also comply with all applicable requirements of the
Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder with respect to the matters set forth in this Bylaw.
Section 3. Newly Created Directorships and Vacancies. Newly
created directorships and vacancies which shall occur in the Board of Directors
because of death, resignation, disqualification, any increase in the number of
directors or any other cause, may be filled by a majority of the directors
then in office, though less than a quorum, pursuant to Section 223 of the
General Corporation Law of Delaware and the Corporations Certificate of
Incorporation. Such directors may, by resolution, eliminate any vacant
directorship thereby reducing the size of the whole Board of Directors but in no
event shall the size of the Board of Directors be reduced to less than three
directors. No decrease in the Board of Directors shall shorten the term of any
incumbent directors.
Section 4. General Powers. The business of the Corporation
shall be managed under the direction of its Board of Directors which may
exercise all such powers of the Corporation 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 by the stockholders.
Section 5. Meetings. The Board of Directors of the Corporation
may hold meetings, both regular and special, either within or without the State
of Delaware.
Section 6. Regular Meetings. Regular meetings of the Board of
Directors may be held without notice at such time and at such place as shall
from time to time be determined by the Board of Directors.
Section 7. Special Meetings. Special meetings of the Board of
Directors may be called at the request of the Chairman of the Board, the
Executive Committee, the President, or any three members of the Board of
Directors. Notice of the time and place of such meeting shall be given to each
director by mail not less than three (3) days before the meeting or personally,
by courier, telephone, facsimile, telecopy or by other electronic means to each
director not less than twelve (12) hours before such meeting.
Section 8. Quorum. At all meetings of the Board of Directors a
majority of the directors shall constitute a quorum for the transaction of
business and the act of a majority of the directors present at any meeting at
which there is a quorum shall be the act of the Board of Directors, except as
may be otherwise specifically provided by statute or by the Certificate of
Incorporation or by these Bylaws. If a quorum shall not be present at any
meeting of the Board
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of Directors the directors present thereat may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present.
Section 9. Organization. At each meeting of the Board of
Directors, the Chairman of the Board, or in his or her absence, the
President of the Corporation, or in his or her absence, a Vice Chairman, or in
the absence of all of said officers, a Chairman chosen by a majority of the
directors present, shall preside. The Secretary of the Corporation, or in
his or her absence, an Assistant Secretary, if any, or, in the absence of both
the Secretary and Assistant Secretaries, any person whom the Chairman shall
appoint, shall act as secretary of the meeting.
Section 10. Informal Action by Directors. Unless otherwise
restricted by the Certificate of Incorporation or these Bylaws, any action
required or permitted to be taken at any meeting of the Board of Directors or
of any committee thereof may be taken without a meeting, if all members of
the Board of Directors or committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of proceedings
of the Board of Directors or committee.
Section 11. Participation by Conference Telephone. Unless
otherwise restricted by the Certificate of Incorporation or these Bylaws,
members of the Board of Directors, or any committee designated by the Board of
Directors, may participate in a meeting of the Board or such committee by means
of conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each other, and
participation in a meeting pursuant to this Section shall constitute presence
in person at such meeting.
Section 12. Compensation. The directors may receive reasonable
fees to be determined from time to time by the Board of Directors for services
actually performed in attending meetings and for other services actually
performed and the expenses of attendance, if any, may be allowed for attendance
at each regular or special meeting of the Board of Directors. A director who
is, at the same time, an officer or employee of the Corporation or an officer
or employee of a subsidiary or affiliate more than 50% owned by the
Corporation, shall not be entitled to receive any compensation or fee for
service as a director or as a member of any committee of the Board of Directors.
ARTICLE IV
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Committees
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Section 1. Executive Committee; Organization and Powers. There
may be an Executive Committee to consist of two or more directors. The Board of
Directors shall elect the members of the Executive Committee by vote of a
majority of the whole Board of Directors and one member of the Executive
Committee shall be elected as Chairman by the vote of a majority of the whole
Board of Directors. The members of the Executive Committee shall be
elected annually at the Boards organizational meeting or as soon
thereafter as possible.
When the Board of Directors is not in session, the Executive Committee
shall have and may exercise all the powers of the Board of Directors in the
management of the business and affairs of the Corporation as permitted by
Delaware law in all cases in which specific directions shall not have been
given by the Board of Directors including, but not limited to, the power to
declare dividends on the common and preferred stock of the Corporation, and
to authorize the
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seal of the Corporation to be affixed to all papers that may require it. The
members of the Executive Committee shall act only as a Committee and individual
members shall have no power as such.
Section 2. Organization and Compensation Committee;
Organization and Powers. There shall be an Organization and Compensation
Committee to consist of two or more directors who are not officers or employees
of the Corporation, each of whom shall be a non-employee director within the
meaning ascribed thereto under Rule 16b-3 promulgated under the Securities
Exchange Act of 1934 as amended from time to time and interpreted by the
Securities and Exchange Commission and an outside director within the meaning
ascribed thereto under 162(m) of the Internal Revenue Code as amended from
time to time and interpreted by the Internal Revenue Service. The Board of
Directors shall elect the members of the Organization and Compensation
Committee by vote of a majority of the whole Board of Directors, and one member
of the Organization and Compensation Committee shall be elected its Chairman
by the vote of a majority of the whole Board of Directors. The members of the
Organization and Compensation Committee shall be elected annually at the
Boards organizational meeting or as soon thereafter as possible.
The Organization and Compensation Committee shall have the power: to
authorize and determine all salaries for the officers and supervisory employees
of the Corporation; to administer the incentive compensation plans of the
Corporation in accordance with the powers and authority granted in such plans;
to determine any ncentive allowances to be made to fficers and staff of the
Corporation; to administer all stock option plans, stock purchase plans and
other equity ownership, compensation, retirement and benefit plans of the
Corporation; to approve the performance based compensation of individuals
pursuant to 162(m) of the Internal Revenue Code; and to authorize and determine
all other matters relating to the compensation or benefits of the Corporation.
The Organization and Compensation Committee hall also have full power
to act as the Nominating Committee, which, when acting as such, shall have the
power and duty to make recommendations to the Board of Directors as to suitable
nominees for election to the Board of Directors by the stockholders or by the
remaining members of the Board of Directors, to fill newly reated directorships
and to fill any vacancies which shall occur.
When acting as the Nominating Committee, it shall have the power to
meet with and consider suggestions from such stockholders, members of
management, consultants and other persons, firms or corporations as they deem
necessary or advisable in the premises to assist them in making such
recommendations.
Section 3. Audit Committee; Organization and Powers. There
shall be an Audit Committee to consist of three or more directors who are not
officers or employees of the Corporation. The Board of Directors shall
elect the members of the Audit Committee by vote of a majority of the whole
Board of Directors and one member of the Audit Committee shall be elected as
Chairman by a vote of a majority of the whole Board of Directors. The members
of the Audit Committee shall be appointed by the Board of Directors to serve
staggered three-year terms.
The Audit Committee shall have the power and the duty to meet with
and consider suggestions from members of management and of the Corporations
internal audit staff, as well
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as with the Corporations independent accountants, concerning the financial
operations of the Corporation. The Audit Committee shall additionally have the
power to review audited financial statements of the Corporation and consider
and recommend the employment of, and approve the fee arrangement with,
independent accountants for both audit functions and for advisory and other
consulting services.
Section 4. Rules, Records and Reports. Each Committee may make
and adopt such rules and regulations governing their proceedings as they may
deem proper and which are consistent with the statutes of the State of
Delaware, the Certificate of Incorporation and these Bylaws. Each Committee
shall keep a full and accurate record of all their acts and proceedings and
report the same from time to time to the Board of Directors.
Section 5. Meetings. Regular meetings of the Committees
shall be held at such times and at such places as from time to time may be fixed
by the Committees. Special meetings of the Committees may be held at such
other times as may in the judgment of the Chairman or, he being absent, in the
judgment of a Committee member, be necessary. Notice of regular meetings need
not be given. Notice of special meetings shall be given to each member by mail
not less than three (3) days before the meeting or personally, by courier,
telephone, facsimile, telecopy or by other electronic means to each member
not less than twelve (12) hours before the meeting, unless the Chairman of
the Committee, or a member acting in that capacity in his or her absence, shall
deem a shorter notice expedient.
Section 6. Quorum. A majority of members of a Committee shall
constitute a quorum for the transaction of business and the act of a majority of
those present shall be the act of the Committee.
Section 7. Subcommittees. A Committee may appoint such
subcommittees as it shall deem necessary.
Section 8. Vacancies. Any vacancy in a Committee shall be
filled by a majority of the whole Board of Directors.
Section 9. Substitute Members. Whenever at any time a member
of any Committee shall be absent from a meeting of that Committee and it shall
be necessary in order to constitute a quorum or, for any other reason,
it may be deemed expedient or desirable, the member or members thereof
present at any meeting and not disqualified from voting, whether or not
he or they constitute a quorum, may unanimously designate a director (subject
to the eligibility requirements set forth in Sections 2 and 3 of this Article
IV) to serve and act in his or her stead; and in the event that the absence of
a Committee member shall be prolonged, such substitute member may, subject
to the approval of the Committee, continue to act for the term of its duration.
A director so designated shall rank as a duly qualified member of the
Committee during incumbency, and shall be entitled to participate in its
deliberations with the same force and effect as if elected in the manner herein
elsewhere provided.
Section 10. Compensation. Subject to the provisions of Section
13 of Article III of these Bylaws, each member of any Committee may receive a
reasonable fee to be fixed by the Board of Directors for services actually
performed in attending meetings, and for other services actually performed,
and shall receive expenses of attendance, if any actually incurred by him for
attendance at any meeting of the Committee.
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ARTICLE V
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Notices
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Section 1. Written Notice. Whenever, under the provisions of the
statutes or of the Certificate of Incorporation or of these Bylaws, notice is
required to be given to any director or stockholder, such notice shall be in
writing and shall be given in person or by mail to such director or
stockholder, except that notice to directors may also be given personally
by courier, telephone, facsimile, telecopy or by other electronic means. If
mailed, notice shall be addressed to such director or stockholder at his or her
address as it appears on the records of the Corporation, with postage thereon
prepaid, and shall be deemed to be given at the time when the same shall be .
deposited in the United States mail.
Section 2. Waiver of Notice. Whenever any notice is required to
be given under the provisions of the statutes or of the Certificate of
Incorporation or of these Bylaws, a waiver thereof in writing, signed by the
person or persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent thereto.
ARTICLE VI
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Officers
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Section 1. Number. The officers of the Corporation shall be
chosen by the Board of Directors and shall include a President, a Treasurer
and a Secretary. The Board of Directors, in its discretion, may also choose
a Chairman of the Board and one or more Vice Chairmen of the Board from among
their members, one or more Executive Vice Presidents and one or more additional
Vice Presidents, and one or more Assistant Treasurers and Assistant Secretaries.
The Board of Directors may also elect a Chief Executive Officer, a Chief
Financial Officer and a Chief Operating Officer. The Board of Directors may
appoint such other officers and agents as it shall deem desirable who shall
hold their offices for such terms and shall exercise such powers and
responsibilities and perform such duties as shall be specified and from time to
time modified or changed by the Board of Directors. Any number of offices may
be held by the same person, unless the Certificate of Incorporation or these
Bylaws otherwise provide. The officers of the Corporation need not be
stockholders of the Corporation.
Section 2. Election and Term of Office. The Board of Directors
at its first meeting after each annual meeting of stockholders shall elect
the officers of the Corporation. The officers of the Corporation shall hold
office until their successors shall have been duly elected or appointed and
qualified, or until they shall become disabled, die, retire, resign or be
removed.
Section 3. Removal. Any officer or agent elected or appointed
by the Board of Directors may be removed, with or without cause, at any time
by the affirmative vote of a majority of the Board of Directors present at any
meeting or by any committee or superior officer upon whom such power of removal
may be conferred by the Board of Directors. All officers and employees
not appointed by the Board of Directors shall hold their offices at the
discretion of the Executive Committee or of the officer appointing them.
Section 4. Vacancies. The Board of Directors shall, as soon
as practicable, fill any vacancy in the office of President. Any vacancy
in any other office may be filled temporarily by
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the Chairman of the Board, or President. In case of temporary incapacity or
absence of any of the officers, the Chairman of the Board, or the President,
may make an appointment pro tem and confer on such appointee full power
and authority to act in place of any of said officers or appointees so
temporarily incapacitated or absent; but such appointment shall be subject to
change by the Board of Directors or by the Executive Committee at any regular
or special meeting.
Section 5. Resignations. Any officer may resign at any time
by giving written notice to the Corporation. Such resignation shall take
effect at the date of the receipt of such notice, or at any later time specified
therein and, unless otherwise provided therein, the acceptance of such
resignation shall not be necessary to make it effective.
CHAIRMAN OF THE BOARD
Section 6. Duties. The Chairman of the Board, if one is
elected, shall preside, if present, at all meetings of the Board of Directors.
The Chairman of the Board shall also perform such other duties and he or she
may exercise such other powers as from time to time may be prescribed by
these Bylaws or by the Board of Directors. In his or her absence, the
President shall discharge the duties of the Chairman of the Board.
VICE CHAIRMEN OF THE BOARD
Section 7. Duties. The Vice Chairmen of the Board, if any,
shall perform such duties and may exercise such powers as from time to time may
be prescribed by the Board of Directors.
CHAIRMAN OF THE EXECUTIVE COMMITTEE
Section 8. Duties. The Chairman of the Executive Committee
shall preside at all meetings of the Executive Committee. In the absence of the
Chairman of the Executive Committee, his or her duties shall be discharged by
the President.
PRESIDENT
Section 9. General Powers and Duties. The President shall
have the general care, supervision and control of the Corporations business
and operations. The President shall have such other powers and perform such
other duties as the Board of Directors may from time to time prescribe and shall
perform such other duties as are incidental to the office of President. In the
event there is no Chairman of the Board or in the absence or incapacity of the
Chairman of the Board, he shall preside at all meetings of the Board of
Directors and stockholders.
Section 10. Appointments. Except as otherwise provided by
statute, the Certificate of Incorporation, or these Bylaws, the President
may employ such persons as he shall deem necessary for the proper management
of the business and property of the Corporation.
VICE PRESIDENTS
Section 11. Powers and Duties. The Vice Presidents shall have
such designations or titles and powers and perform such duties as shall from
time to time be conferred and prescribed by the Board of Directors, the
Executive Committee, the Chairman of the Board or the President.
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SECRETARY
Section 12. Duties. The Secretary, or, in his or her absence, an
Assistant Secretary, shall attend all meetings of the stockholders, of the
Board of Directors and of the Committees of the Board of Directors.
Section 13. Notice of Meetings. The Secretary, or any
Assistant Secretary, shall give due notice of all meetings of the stockholders
and of the Board of Directors and of the Executive Committee, where such
notice is required by law, by the Certificate of Incorporation, by these
Bylaws, by the Board of Directors or by the Executive Committee.
Section 14. Custody of Seal. The Secretary shall be custodian of
the seal of the Corporation, of its records, and of such papers and
documents as may be committed to his or her care by the Board of Directors or
of the Executive Committee. He shall have power to affix the seal of the
Corporation to instruments to which the same is authorized to be affixed
by the Board of Directors or by the Executive Committee, and shall have
power to attest the same. He shall perform such other duties as may be assigned
to him by the Chairman of the Board (if any), the President, the Board of
Directors or the Executive Committee, or as may be prescribed in the rules or
regulations to be adopted by the Board of Directors.
Section 15. Duties of Assistant Secretaries. The Assistant
Secretary or Secretaries shall perform the duties of the Secretary in his or
her absence and such duties as may be assigned to him or them by the Board of
Directors, the Executive Committee, the Chairman of the Board, or the
President, or as may be prescribed in the rules or regulations to be
adopted by the Board of Directors or the Executive Committee; and, he or they
shall have the power to affix the corporate seal to instruments and to attest
the same and to sign the certificates of stock of the Corporation.
OTHER OFFICERS
Section 16. Other Officers. Such other officers as the Board of
Directors may choose shall perform such duties and have such powers as from
time to time may be assigned to them by the President or the Board of
Directors. The Board of Directors may delegate to any officer of the
Corporation the power to choose such other officers and to prescribe their
respective duties and powers.
Section 17. Other Positions. The President may authorize
the use of titles, including the titles of chairman, president and vice
president, by individuals who hold management positions with the business
groups, divisions or other operational units of the Corporation, but who are
not and shall not be deemed officers of the Corporation. Individuals in such
positions shall hold such titles at the discretion of the appointing
officer, who shall be the President or any officer to whom the President
delegates such appointing authority, and shall have such powers and perform
such duties as such appointing officer may from time to time determine.
ARTICLE VII
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Certificates Of Stock and Their Transfer
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Section 1. Certificates of Stock. Every holder of stock in the
Corporation shall be entitled to have a certificate, in such form as the Board
of Directors shall prescribe, signed in the
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name of the Corporation by (i) the Chairman of the Board, President or a
Vice President and (ii) by the Chief Financial Officer or an Assistant Chief
Financial Officer or the Secretary or an Assistant Secretary of the
Corporation, certifying the number and class of shares owned by him or her in
the Corporation. Any of or all of the signatures on the certificate may be a
facsimile. In case any officer, transfer agent, transfer clerk or registrar
who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same
effect as if he or she were such officer, transfer agent or registrar at the
date of issue.
Section 2. Records of Certificates. A record shall be kept of
the name of the person, firm or corporation of record holding the stock
represented by such certificates, respectively, and the respective dates
thereof, and in case of cancellation, the respective dates of cancellation.
Every certificate surrendered to the Corporation for exchange or transfer
shall be cancelled and no new certificate or certificates shall be issued in
exchange for any existing certificate until such existing certificate shall
have been so cancelled, except in cases provided for in Section 3 of this
Article VII.
Section 3. Lost Certificates. 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, 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 Board of Directors may, in its discretion and as a condition precedent
to the issuance thereof, require the owner of such lost, stolen or destroyed
certificate or certificates, or his or her legal representative, to give the
Corporation a bond in such sum as it may direct and/or do such other act as the
Board of Directors shall determine is required as indemnity to protect against
any claim that may be made against the Corporation with respect to the
certificate alleged to have been lost, stolen or destroyed.
Section 4. Transfers of Stock. Transfer of the capital stock
of the Corporation shall be made only on the books of the Corporation by the
holder thereof, or by his or her attorney thereunto authorized by a power of
attorney duly executed and filed with the transfer agent of the Corporation,
and on surrender for cancellation of the certificate or certificates for such
shares. A person in whose name shares of stock stand on the books of the
Corporation and no one else shall be deemed the owner thereof as regards the
Corporation.
Section 5. Transfer and Registry Agents. The Corporation may
maintain a transfer office or agency where its stock shall be directly
transferable and a registry office, which may be identical with the transfer
or agency, where its stock shall be registered; and the Corporation may,
from time to time, maintain one or more other transfer offices or agencies,
and registry offices; and the Board of Directors may from time to time, define
the duties of such transfer agents and registrars and make such rules and
regulations as it may deem expedient, not inconsistent with these Bylaws,
concerning the issue, transfer and registration of certificates for shares of
the capital stock of the Corporation.
Section 6. Closing of Transfer Books; Record Date. The Board
of Directors may close the stock transfer books of the Corporation for a
period of not more than sixty (60) days nor less than ten (10) days
preceding the date of any meeting of stockholders or the date for
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payment of any dividend or the date for the allotment of rights or the date
when any change or conversion or exchange of capital stock shall go into effect.
In lieu of closing the stock transfer books as aforesaid, the Board of
Directors may fix in advance a date, not more than sixty (60) days nor less
than ten (10) days preceding the date of any meeting of stockholders, or the
date for the payment of any dividend, or the date for the allotment of rights,
or the date when any change or conversion or exchange of capital stock shall go
into effect, as a record date for the determination of the stockholders entitled
to notice of, and to vote at, any such meeting, and any adjournment thereof, or
entitled to receive payment of any such dividend, or to any such allotment of
rights, or to exercise the rights in respect of any such change, conversion or
exchange of capital stock and, in such case, such stockholders and only such
stockholders as shall be stockholders of record on the date so fixed shall be
entitled to such notice of, and to vote at, such meeting and any adjournment
thereof, or to receive payment of such dividend, or to receive such allotment
of rights, or to exercise such rights, as the case may be notwithstanding
any transfer of any stock on the books of the Corporation after any such record
date fixed as aforesaid.
Section 7. Registered Stockholders. The Corporation shall be
entitled to recognize the exclusive right of a person registered on its books
as the owner of shares to receive dividends and to vote as such owner, and
shall not be bound to recognize any equitable or other claim to or interest
in such share or shares on the part of any other person, whether or not it
shall have express or other notice thereof, except as otherwise provided by the
laws of Delaware.
ARTICLE VIII
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Amendments and General Provisions
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Section 1. Amendments. These Bylaws may only be altered,
amended or repealed in accordance with the Corporations Certificate of
Incorporation.
Section 2. Proxies. Unless otherwise provided by resolution
of the Board of Directors, the President or any Vice President, from time to
time in the name and on behalf of the Corporation may: (i) himself cast the
votes which the Corporation may be entitled to cast as a stockholder or
otherwise in any other corporation any of whose stock or other securities may
be held by the Corporation, at meetings of the holders of the stock or other
securities of such other corporations or consent in writing to any action by
such other corporation; (ii) appoint an attorney or attorneys, agent or
agents of the Corporation, in the name and on behalf of the Corporation, to
cast the votes which the Corporation may be entitled to cast as a stockholder or
otherwise in any other corporation any of whose stock or other securities may
be held by the Corporation, at meetings of the holders of the stock or other
securities of such other corporations or to consent in writing to any action
by such other corporation, may instruct the person or persons so appointed
as to the manner of casting such votes or giving such consent and may
execute or cause to be executed in the name or on behalf of the Corporation
and under its corporate seal all such written proxies or other instruments as
may be necessary or proper to evidence the appointment of such attorneys and
agents.
Section 3. Fiscal Year. The fiscal year of the Corporation
shall end on the last day of December in each year.