Exhibit 3(ii)
Effective 10/28/98
BYLAWS
OF
D&N FINANCIAL CORPORATION
(hereinafter called the "Corporation")
ARTICLE I
OFFICES
Section 1. Registered Office.
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The registered office of the Corporation shall be in the City of
Wilmington, County of New Castle, State of Delaware.
Section 2. Other Offices.
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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.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings.
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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.
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(a) The annual meetings of stockholders shall be held on such date and at
such time as shall be designated from time to time by the board of directors and
stated in the notice of the meeting, at which meetings the stockholders shall
elect by a plurality vote a board of directors and transact such other business
as may properly be brought before the meeting. Written notice of the annual
meeting stating the place, date and hour of the meeting shall be given to each
stockholder entitled to vote at such meeting not less than ten nor more than
sixty days before the date of the meeting.
(b) At any annual meeting of the stockholders, only such business shall be
conducted as shall have been brought before the meeting (i) by or at the
direction of the board of directors or
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(ii) by any stockholder of the Corporation who is entitled to vote with respect
thereto and who complies with the notice procedures set forth in this Section
2(b). 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. To be timely, a stockholder's notice must be
delivered or mailed to and received at the principal executive offices of the
Corporation not less than sixty (60) days prior to the anniversary of the
preceding year's annual meeting; provided, however, that in the event that the
date of the annual meeting is advanced by more than twenty days, or delayed by
more than sixty days from such anniversary date, notice by the stockholder to be
timely must be so delivered not later than the close of business on the later of
the sixtieth day prior to such annual meeting or the tenth day following the day
on which notice of the date of the annual meeting was mailed or public
announcement of the date of such meeting is first made. A stockholder's notice
to the Secretary shall set forth as to each matter such 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 address, as they appear on the
Corporation's books, of the stockholder who proposed such business, (iii) the
class and number of shares of the Corporation's capital stock that 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 brought before or conducted at an annual meeting
except in accordance with the provisions of this Section 2(b). The officer of
the Corporation or other person presiding over the annual meeting shall, if the
facts so warrant, determine and declare to the meeting that business was not
properly brought before the meeting in accordance with the provisions of this
Section 2(b) and, if he should so determine, he shall so declare to the meeting
and any such business so determined to be not properly brought before the
meeting shall not be transacted.
Section 3. Special Meetings.
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Unless otherwise prescribed by law or by the Certificate of Incorporation,
special meetings of stockholders, for any purpose or purposes, may be called by
either the chairman of the board or the president and shall be called by the
secretary at the written request of holders of not less than 25% of the
outstanding capital stock of the Corporation entitled to vote at the meeting.
Such request shall state the purpose or purposes of the proposed meeting.
Written notice of a special meeting stating the place, date and hour of the
meeting and the purpose or purposes for which the meeting is called shall be
given not less than ten nor more than sixty days before the date of the meeting
to each stockholder entitled to vote at such meeting.
Section 4. Quorum.
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Except as otherwise provided by law or by the Certificate of Incorporation,
the holders of a majority of the capital stock issued and outstanding and
entitled to vote thereat, present in person or represented by proxy, shall
constitute a quorum at all meetings of the stockholders for the transaction of
business. 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, shall have power to adjourn the meeting from
time to time, without notice other than announcement at the meeting, until a
quorum shall be present 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 noticed. If the
adjournment is
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for more than thirty days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be
given to each stockholder entitled to vote at the meeting.
Section 5. Voting.
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Except as otherwise required by law, the Certificate of Incorporation or
these bylaws, any question brought before any meeting of stockholders shall be
decided by the vote of the holders of a majority of the stock duly voted on the
question. Each stockholder represented at a meeting of stockholders shall be
entitled to cast one vote for each share of the capital stock entitled to vote
thereat held by such stockholder. Such votes may be cast in person or by proxy.
The board of directors, in its discretion, or the officer of the Corporation
presiding at a meeting of stockholders, in his discretion, may require that any
votes cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote.
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The officer of the Corporation who has charge of the stock ledger of the
Corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address 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
ten days prior to the meeting either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept open at the time and place of the
meeting during the whole time thereof, and may be inspected by any stockholder
of the Corporation who is present.
Section 7. Stock Ledger.
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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 6 of this Article II, or the books of the Corporation or to vote in
person or by proxy at any meeting of stockholders.
Section 8. Proxies.
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At all meetings of stockholders, a stockholder may vote by proxy executed
in writing by the stockholder or his duly authorized attorney in fact. Proxies
solicited on behalf of management shall be voted as directed by the stockholder
or, in the absence of such direction, as determined by a majority of the board
of directors. No proxy shall be valid after eleven months from the date of its
execution except for a proxy coupled with an interest.
Section 9. Voting of Shares in the Name of Two or More Persons.
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When ownership stands in the name of two or more persons, in the absence of
written direction to the Corporation to the contrary, at any meeting of the
stockholders of the Corporation any one or more of such stockholders may cast,
in person or by proxy, all votes to
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which such ownership is entitled. In the event an attempt is made to cast
conflicting votes, in person or by proxy, by the several persons in whose names
shares of stock stand, the vote or votes to which those persons are entitled
shall be cast as directed by a majority of those holding such stock and present
in person or by proxy at such meeting, but no votes shall be cast for such stock
if a majority cannot agree.
Section 10. Voting of Shares by Certain Holders.
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Shares standing in the name of another corporation may be voted by any
officer, agent or proxy as the bylaws of such corporation may prescribe, or in
the absence of such provision, as the board of directors of such corporation may
determine. Shares held by an administrator, executor, guardian or conservator
may be voted by him, either in person or by proxy, without a transfer of such
shares into his name. Shares standing in the name of a trustee may be voted by
him, either in person or by proxy, but no trustee shall be entitled to vote
shares held by him without a transfer of such shares into his name. Shares
standing in the name of a receiver may be voted by such receiver, and shares
held by or under the control of a receiver may be voted by such receiver without
the transfer thereof into his name if authority to do so is contained in an
appropriate order of the court or other public authority by which such receiver
was appointed.
A stockholder whose shares are pledged shall be entitled to vote such
shares until the shares have been transferred into the name of the pledgee, and
thereafter the pledgee shall be entitled to vote the shares so transferred.
Neither treasury shares of its own stock held by the Corporation, nor
shares held by another corporation, if a majority of the shares entitled to vote
for the election of directors of such other corporation are held by the
Corporation, shall be voted at any meeting or counted in determining the total
number of outstanding shares at any given time for purposes of any meeting.
Section 11. Inspectors of Election.
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In advance of any meeting of stockholders, the board of directors may
appoint any persons other than nominees for office as inspectors of election to
act at such meeting or any adjournment thereof. The number of inspectors shall
be either one or three. If the board of directors so appoints either one or
three such inspectors, that appointment shall not be altered at the meeting. If
inspectors of election are not so appointed, the chairman of the board or the
president may, and on the request of not less than ten percent of the votes
represented at the meeting shall, make such appointment at the meeting. If
appointed at the meeting, the majority of the voters present shall determine
whether one or three inspectors are to be appointed. In case any person
appointed as inspector fails to appear or fails or refuses to act, the vacancy
may be filled by appointment by the board of directors in advance of the meeting
or at the meeting by the chairman of the board or the president.
Unless otherwise prescribed by law, the duties of such inspectors shall
include: determining the number of shares of stock and the voting power of each
share, the shares of stock represented at the meeting, the existence of a
quorum, the authenticity, validity and effect of proxies; receiving votes,
ballots or consents; hearing and determining all challenges and questions in any
way arising in connection with the right to vote; counting and tabulating all
votes or
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consents; determining the result; and such acts as may be proper to conduct
the election or vote with fairness to all stockholders.
Section 12. Conduct of Meetings.
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Annual and special meetings shall be conducted in accordance with the most
current edition of Robert's Rules of Order unless otherwise prescribed by law or
these bylaws. The board of directors shall designate, when present, either the
chairman of the board or president to preside at such meetings.
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors.
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The number of directors shall be as stated in the Corporation's Certificate
of Incorporation, as may be amended from time to time. The exact number of
directors shall initially be fixed by the Incorporator(s) and thereafter from
time to time by the board of directors. Directors need not be residents of the
State of Delaware.
Section 2. Vacancies.
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Vacancies in the board of directors, however caused, shall be filled by a
majority vote of the directors then in office, whether or not a quorum, and any
director so chosen shall hold office for a term expiring at the annual meeting
of stockholders at which the term of the class to which he has been chosen
expires and when his successor is elected and qualified.
Section 3. Duties and Powers.
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The business of the Corporation shall be managed by or under the direction
of the 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. The board of directors shall annually
elect a chairman of the board and a president from among its members and shall
designate, when present, either the chairman of the board or the president to
preside at its meetings.
Section 4. Meetings.
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The board of directors of the Corporation may hold meetings, both regular
and special, either within or without the State of Delaware. The annual regular
meeting of the board of directors shall be held without other notice than this
bylaw immediately after, and at the same place as, the annual meeting of
stockholders. Additional regular meetings of the board of directors may be held
without notice at such time and at such place as may from time to time be
determined by the board of directors. Special meetings of the board of
directors may be called by the chairman, the president or a majority of
directors then in office. Notice thereof stating the
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place, date and hour of the meeting shall be given to each director either
by mail not less than forty-eight hours before the date of the meeting, or
by telephone, telegram, facsimile or other electronic means on twenty-four
hours' notice.
Section 5. Quorum.
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Except as may be otherwise specifically provided by law, the Certificate of
Incorporation or these bylaws, at all meetings of the board of directors, a
majority of the directors then in office 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. If a quorum shall not be present at any meeting of the board 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 6. Actions of the Board.
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Unless otherwise provided 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
the 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 7. Meetings by Means of Conference Telephone.
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Unless otherwise provided by the Certificate of Incorporation or these
bylaws, members of the board of directors of the Corporation, or any committee
designated by the board of directors, may participate in a meeting of the board
of directors or such committee by means of a 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 7 shall constitute presence in person at such meeting.
Section 8. Compensation.
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The directors may be paid their reasonable expenses, if any, of attendance
at each meeting of the board of directors and may be paid a reasonable fixed sum
for actual attendance at each meeting of the board of directors. Directors, as
such, may receive a stated salary for their services. No such payment shall
preclude any director from serving the Corporation in any other capacity and
receiving compensation therefor. Members of special or standing committees may
be allowed like compensation for attending committee meetings.
Section 9. Corporate Books.
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The directors may keep the books of the Corporation, except such as are
required by law to be kept within the state, outside of the State of Delaware at
such place or places as they may from time to time determine.
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Section 10. Presumption of Assent.
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A director of the Corporation who is present at a meeting of the board of
directors at which action on any Corporation matter is taken shall be presumed
to have assented to the action taken unless his dissent or abstention shall be
entered in the minutes of the meeting or unless he shall file his written
dissent to such action with the person acting as the secretary of the meeting
before the adjournment thereof or shall forward such dissent by registered mail
to the secretary of the Corporation within five days after the date he receives
a copy of the minutes of the meeting. Such right to dissent shall not apply to
a director who voted in favor of such action.
Section 11. Resignation.
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Any director may resign at any time by sending a written notice of such
resignation to the home office of the Corporation addressed to the chairman of
the board or the president. Unless otherwise specified therein such resignation
shall take effect upon receipt thereof by the chairman of the board or the
president. More than three consecutive absences from regular meetings of the
board of directors, unless excused by resolution of the board, shall
automatically constitute a resignation, effective when such resignation is
accepted by the board of directors.
Section 12. Nominating Committee.
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Only persons who are nominated in accordance with the procedures set forth
in these Bylaws shall be eligible for election as directors. Nominations of
persons for election to the board of directors of the Corporation may be made at
a meeting of stockholders at which directors are to be elected only (i) by or at
the direction of the board of directors or (ii) by any stockholder of the
Corporation entitled to vote for the election of directors at the meeting who
complies with the notice procedures set forth in this Section 12. Such
nominations, other than those made by or at the direction of the board of
directors, shall be made by timely notice in writing to the Secretary of the
Corporation. To be timely, a stockholder's notice shall be delivered or mailed
to and received at the principal executive offices of the Corporation not less
than 60 days prior to the date of the meeting; provided, however, that in the
event that less than 70 days' notice of the date of the meeting is first given
or made to stockholders, by public announcement or mail, notice by the
stockholder to be timely must be so received not later than the close of
business on the 10th day following the day on which such notice of the date of
the meeting was mailed or public announcement was first made. Such
stockholder's notice shall set forth (i) as to each person whom such 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, or is otherwise required, in each case
pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended
(including such person's written consent to being named in the proxy statement
as a nominee and to serving as a director if elected); and (ii) as to the
stockholder giving the notice: (x) the name and address, as they appear on the
Corporation's books, of such stockholder and (y) the class and number of shares
of the Corporation's capital stock that are beneficially owned by such
stockholder. At the request of the board of directors, any person nominated by
the board of directors for election as a director shall furnish to the Secretary
of the Corporation that information required to be set forth in a stockholder's
notice of nomination which pertains to the nominee. No person shall be eligible
for election as a director of the Corporation unless nominated in accordance
with the provisions of this Section 12. The
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officer of the Corporation or other person presiding at the meeting shall,
if the facts so warrant, determine that a nomination was not made in
accordance with such provisions and, if he or she should so determine, he
or she shall so declare to the meeting and the defective nomination shall
be disregarded.
Section 13. Age Limitation on Directors.
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Any director who was elected to the board of directors subsequent to
February 1, 1972, upon reaching seventy years of age, shall retire at the annual
meeting following said director's seventieth birthday; provided, however, that
Joseph C. Bromley shall retire at the annual meeting following his seventy-first
birthday. Any director who was elected prior to February 1, 1972, upon reaching
seventy-five years of age, shall retire at the annual meeting following said
director's seventy-fifth birthday. This age limitation shall not apply to an
advisory director.
ARTICLE IV
EXECUTIVE AND OTHER COMMITTEES
Section 1. Appointment.
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The board of directors, by resolution adopted by a majority of the full
board, may designate the chief executive officer and two or more of the other
directors to constitute an executive committee. The designation of any
committee pursuant to this Article IV and the delegation of authority thereto
shall not operate to relieve the board of directors, or any director, of any
responsibility imposed by law or regulation.
Section 2. Authority.
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The executive committee, when the board of directors is not in session,
shall have and may exercise all of the authority of the board of directors
except to the extent, if any, that such authority shall be limited by the
resolution appointing the executive committee; and except also that the
executive committee shall not have the authority of the board of directors with
reference to the declaration of dividends; the amendment of the Certificate of
Incorporation or bylaws of the Corporation, or recommending to the shareholders
a plan of merger or consolidation; the sale, lease or other disposition of all
or substantially all of the property and assets of the Corporation otherwise
than in the usual and regular course of its business; a voluntary dissolution
of the Corporation; a revocation of any of the foregoing; or the approval of a
transaction in which any member of the executive committee, directly or
indirectly, has any material beneficial interest.
Section 3. Tenure.
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Subject to the provisions of Section 8 of this Article IV, each member of
the executive committee shall hold office until the next annual regular meeting
of the board of directors following his designation and until his successor is
designated as a member of the executive committee.
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Section 4. Meetings.
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Regular meetings of the executive committee may be held without notice at
such times and places as the executive committee may fix from time to time by
resolution. Special meetings of the executive committee may be called by any
member thereof upon not less than one day's notice stating the place, date and
hour of the meeting, which notice may be written or oral. Any members of the
executive committee may waive notice of any meeting and no notice of any meeting
need be given to any member thereof who attends in person. The notice of a
meeting of the executive committee need not state the business proposed to be
transacted at the meeting.
Section 5. Quorum.
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A majority of the members of the executive committee shall constitute a
quorum for the transaction of business at any meeting thereof, and action of the
executive committee must be authorized by the affirmative vote of a majority of
the members present at a meeting at which a quorum is present.
Section 6. Action Without a Meeting.
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Any action required or permitted to be taken by the executive committee at
a meeting may be taken without a meeting if a consent in writing, setting forth
the action so taken, shall be signed by all of the members of the executive
committee.
Section 7. Vacancies.
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Any vacancy in the executive committee may be filled by a resolution
adopted by a majority of the full board of directors.
Section 8. Resignations and Removal.
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Any member of the executive committee may be removed at any time with or
without cause by resolution adopted by a majority of the full board of
directors. Any member of the executive committee may resign from the executive
committee at any time by giving written notice to the president or secretary of
the Corporation. Unless otherwise specified therein, such resignation shall
take effect upon receipt. The acceptance of such resignation shall not be
necessary to make it effective.
Section 9. Procedure.
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The executive committee shall elect a presiding officer from its members
and may fix its own rules of procedure which shall not be inconsistent with
these bylaws. It shall keep regular minutes of its proceedings and report the
same to the board of directors for its information at the meeting thereof held
next after the proceedings shall have been taken.
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Section 10. Other Committees.
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The board of directors may by resolution establish an audit committee or
other committees composed of directors as they may determine to be necessary or
appropriate for the conduct of the business of the Corporation and may prescribe
the duties, constitution and procedures thereof.
ARTICLE V
OFFICERS
Section 1. General.
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The officers of the Corporation shall be chosen by the board of directors
and shall be a president, a secretary and a treasurer. The chairman of the
board may also be designated as an officer. The board of directors may
designate one or more vice-presidents, assistant secretaries, assistant
treasurers and other officers. The offices of secretary and treasurer may be
held by the same person and a vice-president may also be either the secretary or
the treasurer. Unless otherwise specified to the contrary in the Certificate of
Incorporation or these bylaws, the officers of the Corporation need not be
either stockholders or directors of the Corporation.
Section 2. Election.
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The board of directors at its first meeting held after the annual meeting
of stockholders shall elect annually the officers of the Corporation who shall
exercise such powers and perform such duties as shall be set forth in these
bylaws and as determined from time to time by the board of directors; and all
officers of the Corporation shall hold office until their successors are chosen
and qualified, or until their earlier resignation or removal. Any officer
elected by the board of directors may be removed at any time by the affirmative
vote of a majority of the board of directors. Any vacancy occurring in any
office of the Corporation shall be filled by the board of directors. The
salaries of all officers of the Corporation shall be fixed by the board of
directors.
Section 3. Removal.
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Any officer may be removed by the board of directors whenever in its
judgment the best interests of the Corporation will be served thereby, but such
removal, other than for cause, shall be without prejudice to the contract
rights, if any, of the person so removed.
Section 4. Voting Securities Owned by the Corporation.
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Powers of attorney, proxies, waivers of notice of meeting, consents and
other instruments relating to securities owned by the Corporation may be
executed in the name of and on behalf of the Corporation by the president or any
vice-president, and any such officer may, in the name of and on behalf of the
Corporation, take all such action as any such officer may deem advisable to vote
in person or by proxy at any meeting of security holders of any corporation of
which the Corporation may own securities and at any such meeting shall possess
and may exercise any and
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all rights and powers incident to the ownership of such securities and which,
as the owner thereof, the Corporation might have exercised and possessed if
present. The board of directors may, by resolution, from time to time confer
like powers upon any other person or persons.
Section 5. Chairman of the Board and President.
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The chief executive officer shall be a director of the Corporation. The
chairman of the board or the president, as designated by the board of directors,
shall be the chief executive officer. The chairman of the board or the
president shall, subject to the control of the board of directors, have general
supervision of the business of the Corporation and shall see that all orders and
resolutions of the board of directors are carried into effect. The president
shall execute all bonds, mortgages, contracts and other instruments of the
Corporation requiring a seal, under the seal of the Corporation, except where
required or permitted by law to be otherwise signed and executed and except that
the other officers of the Corporation may sign and execute documents when so
authorized by these bylaws, the board of directors, the chairman of the board or
the president. If so designated by the board of directors, the chairman of the
board or the president shall preside at the annual meetings and special meetings
of the stockholders. The chairman of the board or the president shall also
perform such other duties and may exercise such other powers as from time to
time assigned to him by these bylaws or by the board of directors.
Section 6. Vice-President.
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At the request of the president or in his absence or in the event of his
inability or refusal to act, the vice-president or the vice-presidents if there
is more than one (in the order designated by the board of directors) shall
perform the duties of the president, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the president. Each vice-
president shall perform such other duties and have such other powers as the
board of directors from time to time may prescribe. The board of directors may
designate one or more vice-presidents as executive vice-president or senior
vice-president. If there be no vice-president, the board of directors shall
designate the officer of the Corporation who, in the absence of the president or
in the event of the inability or refusal of the president to act, shall perform
the duties of the president, and when so acting, shall have all the powers of
and be subject to all the restrictions upon the president.
Section 7. Secretary.
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The secretary shall attend all meetings of the board of directors and all
meetings of stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the secretary shall also perform like duties
for the standing committees when required. The secretary shall give, or cause
to be given, notice of all meetings of the stockholders and special meetings of
the board of directors, and shall perform such other duties as may be prescribed
by the board of directors, chairman of the board or president, under whose
supervision he shall be. If the secretary shall be unable or shall refuse to
cause to be given notice of all meetings of the stockholders and special
meetings of the board of directors, and if there be no assistant secretary, then
either the board of directors or the president may choose another officer to
cause such notice to be given. The secretary shall have custody of the seal of
the Corporation and the secretary or any assistant secretary, if there be one,
shall have authority to affix the same to any instrument requiring it and when
so affixed, it may be attested by the signature of the secretary or by the
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signature of any such assistant secretary. The board of directors may give
general authority to any other officer to affix the seal of the Corporation and
to attest the affixing by his signature. The secretary shall see that all
books, reports, statements, certificates and other documents and records
required by law to be kept or filed are properly kept or filed, as the case
may be.
Section 8. Treasurer.
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The treasurer shall have the custody of the corporate funds and securities
and shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Corporation and shall deposit all moneys and other valuable
effects in the name and to the credit of the Corporation in such depositories as
may be designated by the board of directors. The treasurer shall disburse the
funds of the Corporation as may be ordered by the board of directors, taking
proper vouchers for such disbursements, and shall render to the president and
the board of directors, at its regular meetings, or when the board of directors
so requires, an account of all his transactions as treasurer and of the
financial condition of the Corporation. If required by the board of directors,
the treasurer shall give the Corporation a bond in such sum and with such surety
or sureties as shall be satisfactory to the board of directors for the faithful
performance of the duties of his office and for the restoration to the
Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the Corporation.
Section 9. Assistant Secretaries.
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Except as may be otherwise provided in these bylaws, assistant secretaries,
if there be any, shall perform such duties and have such powers as from time to
time may be assigned to them by the board of directors, the president, any vice-
president, if there be one, or the secretary, and in the absence of the
secretary or in the event of his inability or refusal to act, shall perform the
duties of the secretary, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the secretary.
Section 10. Assistant Treasurers.
--------------------
Assistant treasurers, if there be any, shall perform such duties and have
such powers as from time to time may be assigned to them by the board of
directors, the president, any vice-president, if there be one, or the treasurer,
and in the absence of the treasurer, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the treasurer. If
required by the board of directors, an assistant treasurer shall give the
Corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the board of directors for the faithful performance of the
duties of his office and for the restoration to the Corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the Corporation.
Section 11. 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
board of directors. The
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board of directors may delegate to any other officer of the Corporation the
power to choose such other officers and to prescribe their respective
duties and powers.
ARTICLE VI
STOCK
Section 1. Form of Certificates.
--------------------
Every holder of stock in the Corporation shall be entitled to have a
certificate signed, in the name of the Corporation (i) by the chairman of the
board of directors, the president or a vice-president and (ii) by the treasurer
or an assistant treasurer, or the secretary or an assistant secretary of the
Corporation, certifying the number of shares owned by him in the Corporation.
Section 2. Signatures.
----------
Where a certificate is countersigned by (i) a transfer agent other than the
Corporation or its employee, or (ii) a registrar other than the Corporation or
its employee, any other signature on the certificate may be a facsimile. In
case any officer whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer before such certificate is issued it may be
issued by the Corporation with the same effect as if he were such officer at the
date of issue.
Section 3. Lost Certificates.
-----------------
The board of directors may direct a new certificate to be issued in place
of any certificate 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, 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 his legal
representative, to advertise the same in such manner as the board of directors
shall require and/or to give the Corporation a bond in such sum as it may direct
as indemnity 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.
---------
Stock of the Corporation shall be transferable in the manner prescribed by
law and in these bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney
lawfully constituted in writing and upon the surrender of the certificate
therefor, which shall be cancelled before a new certificate shall be issued.
Section 5. Record Date.
-----------
In order that the Corporation may determine the stockholders entitled to
notice of or to vote at any meeting of stockholders or any adjournment thereof,
or entitled to receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in
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respect of any change, conversion or exchange of stock, or for the purpose of
any other lawful action, the board of directors may fix, in advance, a record
date, which shall not be more than sixty days nor less than ten days before the
date of such meeting, nor more than sixty days prior to any other action. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the board of directors may fix a new record date for the adjourned
meeting.
Section 6. Beneficial Owners.
-----------------
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 to hold liable for calls and assessments a person
registered on its books as the owner of shares, 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 law.
ARTICLE VII
NOTICES
Section 1. Notices.
-------
Whenever written notice is required by law, the Certificate of
Incorporation or these bylaws, to be given to any director, member of a
committee or stockholder, such notice may be given by mail, addressed to such
director, member of a committee or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice
shall be deemed to be given at the time when the same shall be deposited in the
United States mail. Written notice may also be given personally or by telegram,
telex or cable. Notice of the annual meeting of stockholders may also be given
by public announcement, as long as written notice as set forth above is also
given at least 10 days prior to the date of the annual meeting.
Section 2. Waivers of Notice.
-----------------
Whenever any notice is required by law, the Certificate of Incorporation or
these bylaws, to be given to any director, member of a committee or stockholder,
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.
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ARTICLE VIII
GENERAL PROVISIONS
Section 1. Dividends.
---------
Dividends upon the capital stock of the Corporation, subject to the
provisions of the Certificate of Incorporation if any, may be declared by the
board of directors at any regular or special meeting, and may be paid in cash,
in property, or in shares of the capital stock.
Section 2. Disbursements.
-------------
All checks or demands for money and notes of the Corporation shall be
signed by such officer or officers or such other person or persons as the board
of directors may from time to time designate.
Section 3. Fiscal Year.
-----------
The fiscal year of the Corporation shall be fixed by resolution of the
board of directors.
Section 4. Corporate Seal.
--------------
The corporate seal shall have inscribed thereon the name of the
Corporation, the year of its organization and the words "Corporate Seal,
Delaware." The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE IX
AMENDMENTS
Section 1. Amendments of Bylaws.
--------------------
These bylaws may be altered, amended or repealed, in whole or in part, or
new bylaws may be adopted by the stockholders or by the board of directors,
provided, however, that notice of such alteration, amendment, repeal or adoption
of new bylaws be contained in the notice of such meeting of stockholders or
board of directors as the case may be. All such amendments must be approved by
either the holders of at least a majority of the votes eligible to be cast by
stockholders of the Corporation or by at least a majority of the entire board of
directors then in office.
Section 2. Entire Board of Directors.
-------------------------
As used in this Article IX and in these bylaws generally, the term "entire
board of directors" means the total number of directors which the Corporation
would have if there were no vacancies.
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ARTICLE X
INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES, TRUSTEES AND AGENTS
Section 1. Scope of Indemnification - Proceedings in General.
-------------------------------------------------
(a) Every person who is or was a director, officer or employee of the
Corporation or a wholly-owned direct or indirect subsidiary of the Corporation,
or is or was, at the request or direction of the Corporation, a director,
officer or employee of any other corporation, partnership, trust, venture, or
other entity or enterprise, including any employee benefit plan, shall be
indemnified by the Corporation against any and all liabilities, judgments, fines
and reasonable settlements, costs, expenses and attorneys' fees incurred in any
actual, threatened or potential proceeding, whether civil, criminal,
administrative or investigative, including any appeal, review, rehearing or
related proceeding, except to the extent that such indemnification is limited by
Delaware law and the limitations of such law cannot be varied by contract or
bylaw.
(b) Every person who is or was a trustee, agent or advisor of the
Corporation or a wholly-owned direct or indirect subsidiary of the Corporation,
and who is not also a director, officer or employee of the Corporation or a
wholly-owned direct or indirect subsidiary of the Corporation, may, in the
discretion of the board of directors, be indemnified by the Corporation against
any and all liabilities, judgments, fines and reasonable settlements, costs,
expenses and attorneys' fees incurred in any actual, threatened or potential
proceeding, whether civil, criminal, administrative or investigative, including
any appeal, review, rehearing or related proceeding, except to the extent that
such indemnification is limited by Delaware law and the limitations of such law
cannot be varied by contract or bylaw.
Section 2. Advance of Expenses.
-------------------
(a) Prior to the final disposition of a proceeding, the Corporation shall
promptly indemnify a person for expenses, including attorneys' fees, incurred in
connection with the proceeding where it reasonably appears to the board of
directors that the person satisfies, or will satisfy, the conditions expressed
in Section 1(a) of this Article, provided that the person makes a written
request for such indemnification and agrees to repay such amount if such payment
is unlawful under Delaware law and the limitations of such law cannot be
modified by contract or bylaw.
(b) If a person satisfies the conditions of the above Section 2(a) except
that such person's eligibility for indemnification is dependent on Section 1(b)
of this Article rather than Section 1(a) of this Article, the Corporation may,
in the discretion of the board of directors, advance expenses, including
attorneys' fees, to such person as provided in Section 2(a) of this Article in
connection with a proceeding prior to the final disposition of such proceeding.
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Section 3. Miscellaneous.
-------------
In the event of the death of any person having a right of indemnification
under the provisions of this Article, such right shall inure to the benefit of
the heirs, executors, administrators and personal representatives of such
person. If any part of this Article should be found to be invalid or
ineffective in any proceeding, the validity and effect of the remaining
provisions shall not thereby be affected.
Section 4. Indemnification Not Exclusive.
-----------------------------
The foregoing right of indemnification shall not be exclusive of any other
right to which those indemnified may be entitled, and the Corporation may
provide additional indemnity and rights to its directors, officers, employees,
trustees or agents.
Section 5. Insurance.
---------
The Corporation may, as the board of directors may direct, purchase and
maintain insurance on behalf of any person who is or at any time has been, at
the request or direction of the Corporation, a director, officer, employee,
trustee or agent of the Corporation or of any other corporation, partnership,
trust, venture, or other entity or enterprise, including any employee benefit
plan, against any liability asserted against and incurred by such person in any
such capacity or arising out of such person's status as such, whether or not the
Corporation would have the power to indemnify such person against such liability
under the provisions of this Article.
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