1
EXHIBIT 3.2
================================================================================
BYLAWS
OF
FOOTHILL INDEPENDENT BANCORP
A DELAWARE CORPORATION
AS ADOPTED MAY 3, 2000
================================================================================
2
BYLAWS
OF
FOOTHILL INDEPENDENT BANCORP
A DELAWARE CORPORATION
ARTICLE I
OFFICES
SECTION 1. REGISTERED OFFICE. The registered office of the Corporation
in the State of Delaware shall be fixed in the Certificate of Incorporation of
the Corporation.
SECTION 2. PRINCIPAL EXECUTIVE OFFICE. The Corporation's principal
executive office shall be fixed and located at such place, either within or
without the State of Delaware, as the Board of Directors of the Corporation
shall determine. The Board of Directors is granted full power and authority to
change said principal executive office from one location to another.
SECTION 3. OTHER OFFICES. The Corporation may also have offices at such
other places both within and without the State of Delaware as the Board of
Directors may from time to time determine or the business of the Corporation may
require.
SECTION 4. BOOKS. The books of the Corporation may be kept within or
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
MEETINGS OF STOCKHOLDERS
SECTION 1. PLACE OF MEETINGS. All meetings of stockholders shall be
held at such place either within or without the State of Delaware as shall be
designated from time to time by the Board of Directors.
SECTION 2. ANNUAL MEETINGS. Annual meetings of stockholders, for the
purpose of electing directors and transacting such other business as may
properly be brought before the meeting, shall be held on such date and time as
shall be designated from time to time by the Board of Directors.
SECTION 3. SPECIAL MEETINGS. Special meetings of stockholders, for any
purpose or purposes, unless otherwise prescribed by statute or by the
Certificate of Incorporation, may be called by the President and shall be called
by the President or Secretary at the request in writing of a majority of the
Board of Directors, or at the request in writing of a stockholder or
stockholders owning stock of the Corporation possessing ten percent (10%) of the
voting power possessed by all of the then outstanding capital stock of any class
of the corporation entitled to vote.
Upon request in writing to the chairman of the board, president, vice
president or secretary by any person (other than the board) entitled to call a
special meeting of stockholders,
1
3
the officer forthwith shall cause notice to be given to the stockholders
entitled to vote that a meeting will be held at a time requested by the person
or persons calling the meeting, not less than 35 nor more than 60 days after the
receipt of the request. Such request shall state the purpose or purposes of the
proposed meeting. If the notice is not given within 20 days after receipt of the
request, the persons entitled to call the meeting may give the notice or the
superior court of the proper county shall summarily order the giving of the
notice, after notice to the corporation giving it an opportunity to be heard.
The court may issue such orders as may be appropriate, including, without
limitation, orders designating the time and place of the meeting, the record
date for determination of stockholders entitled to vote and the form of notice.
SECTION 4. NOTIFICATION OF BUSINESS TO BE TRANSACTED AT MEETING. To be
properly brought before an annual meeting, business must be (a) specified in the
notice of meeting (or any supplement thereto) given by or at the direction of
the Board of Directors, (b) otherwise properly brought before the meeting by or
at the direction of the Board of Directors, or (c) otherwise properly brought
before the meeting by a stockholder entitled to vote at the meeting.
For business to be properly brought before an annual meeting by a
stockholder under sub-category (c) of this Section 4, the stockholder must have
given timely notice thereof in writing to the Secretary of the Corporation, the
stockholder must have been a stockholder of record at the time the notice was
given, and any such proposed business must constitute a proper matter for
stockholder action. A stockholder's notice is timely only if it has been
received by the Secretary of the Corporation not less than sixty (60) nor more
than ninety (90) days prior to the first anniversary of the preceding year's
annual meeting of stockholders. In the event that the date of the annual meeting
of stockholders is advanced or delayed by more than thirty (30) days from such
anniversary, notice by the stockholder to be timely must be received by the
Secretary of the Corporation not earlier than the seventy-fifth (75th) day prior
to such annual meeting and not later than the close of business on the later of
the forty-fifth (45th) day prior to such annual meeting or the tenth (10th) day
following the day on which notice of the changed date of the annual meeting was
mailed or public disclosure thereof was made by the Corporation, whichever first
occurs. Such stockholder's notice shall set forth a brief description of the
business desired to be brought before the meeting, the text of the proposal or
business (including the text of any resolutions proposed for consideration and,
in the event that such business includes a proposal to amend the Bylaws of the
Corporation, the language of the proposed amendment), the reasons for conducting
such business at the meeting and any material interest in such business of such
stockholder and beneficial owner, if any, on whose behalf the proposal is made.
The Chairman of the meeting shall, if the facts warrant, determine and declare
to the meeting that a notice by a stockholder was not made in accordance with
the procedures prescribed by this Section 4, and if he or she should so
determine, the defective notice and its contents shall be disregarded.
SECTION 5. NOMINATIONS AND ELECTIONS OF DIRECTORS.
(a) Nominations for the election of directors shall be made by a
nominating committee of the Board of Directors if then constituted pursuant to
these Bylaws, or if no nominating committee has been constituted, by the Board
of Directors. Any stockholder who desires that such committee or the Board of
Directors consider any person for nomination by the Board of Directors as a
candidate for election to the Board of Directors may send a written notice to
the Secretary of the Corporation, which identifies such proposed nominee or
nominees and
2
4
contains the information set forth below in clauses (i) through (vi) of this
Section 5. In addition, any stockholder entitled to vote in the election of
directors generally may nominate one or more persons for election as directors
at an annual meeting of stockholders, but only if written notice of such
stockholder's intent to make such nomination or nominations has been received by
the Secretary of the Corporation not less than sixty (60) nor more than ninety
(90) days prior to the first anniversary of the preceding year's annual meeting
of stockholders. In the event that the date of the annual meeting of
stockholders is advanced or delayed by more than thirty (30) days from such
anniversary, notice by the stockholder to be timely must be received by the
Secretary of the Corporation not earlier than the seventy-fifth (75th) day prior
to such annual meeting and not later than the close of business on the later of
the forty-fifth (45th) day prior to such annual meeting or the tenth (10th) day
following the day on which notice of the changed date of the annual meeting was
mailed or public disclosure thereof was made by the Corporation, whichever first
occurs. Each notice by a stockholder given under this Section 5 shall set forth:
(i) the name and address of the stockholder who intends to make the nomination
and of the person or persons to be nominated; (ii) a representation that the
stockholder is a holder of record of stock of the Corporation entitled to vote
and intends to appear in person or by proxy at such meeting to nominate the
person or persons specified in the notice; (iii) a description of all
arrangements or understandings between the stockholder or any person that
directly or indirectly through one or more intermediaries controls, or is
controlled by, or is under common control with, such stockholder (an "Affiliate"
of such stockholder) and each nominee and any other person or persons (naming
such person or persons) relating to the nomination or nominations; (iv) the
class, series and number of shares of the Corporation that are owned by such
stockholder and the person to be nominated as of the date of such stockholder's
notice and by any other stockholders known by such stockholder to be supporting
such nominees as of the date of such stockholder's notice; (v) such other
information regarding each nominee proposed by such stockholder as would be
required to be included in a proxy statement filed pursuant to the proxy rules
of the Securities and Exchange Commission for a meeting of stockholders at which
directors are to be elected; and (vi) the written consent of each nominee to
serve as a director of the Corporation if so elected. Any stockholder who
desires to nominate one or more persons for election as directors at an annual
meeting of stockholders also shall comply with all applicable requirements of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the
rules and regulations thereunder, with respect to the matters set forth in this
Section 5.
(b) No person who is proposed to be nominated by a stockholder at
an annual stockholders meeting shall be eligible for election as a director of
the Corporation at such meeting unless nominated in accordance with the
applicable procedures set forth in this Section 5. The Chairman of the meeting
shall, if the facts warrant, determine and declare to the meeting that a
nomination was not made in accordance with the procedures prescribed by this
Section 5, and if he or she should so determine, the defective nomination shall
be disregarded.
SECTION 6. NOTICE; WAIVER OF NOTICE. Whenever stockholders are required
or permitted to take any action at a meeting, a written notice of the meeting
shall be given which shall state the place, date and hour of the meeting, and,
in the case of a special meeting, the purpose or purposes for which the meeting
is called. Unless otherwise required by law, such notice shall be given not less
than ten (10) nor more than sixty (60) days before the date of the meeting to
each stockholder of record entitled to vote at such meeting. If mailed, such
notice shall be deemed to be given when deposited in the United States mail,
postage prepaid, directed to the stockholder at
3
5
his address as it appears on the records of the Corporation. A written waiver of
any such notice signed by the person entitled thereto, whether before or after
the time stated therein, shall be deemed equivalent to notice. Attendance of a
person at a meeting shall constitute a waiver of notice of such meeting, except
when the person attends the meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened.
In the case of an annual meeting, the notice of meeting shall contain
those matters that the Board of Directors, at the time of mailing of the notice,
intends to present for action by the stockholders, provided, however, that
subject to the provisions of applicable law, any other matters may be presented
for action by the Board of Directors at the meeting. In the case of a special
meeting, the notice of meeting shall contain the purpose or purposes for which
the meeting was called.
SECTION 7. QUORUM; ADJOURNMENT. Except as otherwise required by law, or
provided by the Certificate of Incorporation or these Bylaws, 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
for the transaction of business at all meetings of the stockholders. A meeting
at which a quorum is initially present may continue to transact business,
notwithstanding the withdrawal of enough votes to leave less than a quorum, if
any action taken is approved by at least a majority of the required quorum to
conduct that meeting. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the majority of 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 of the time and place of the adjourned 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 for more than thirty (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 entitled to vote at the meeting.
SECTION 8. VOTING. Any matter brought before a meeting of stockholders
at which a quorum is present shall, unless otherwise provided by law, the
Certificate of Incorporation or these Bylaws, be decided by the vote of the
holders of a majority of the stock represented and entitled to vote thereon.
Unless otherwise provided in the Certificate of Incorporation, 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. Elections of directors need not be by ballot unless the Chairman of
the meeting so directs or unless a stockholder demands election by ballot at the
meeting and before the voting begins. The stockholders of the Corporation shall
not have the right to cumulate their votes for the election of directors of the
Corporation.
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 another person or persons to act for him by
proxy, but no such proxy shall be voted or acted upon after three (3) years from
its date, unless the proxy provides for a longer period. A proxy shall be
irrevocable if it states that it is irrevocable and if, and only as long as, it
is coupled with an
4
6
interest sufficient in law to support an irrevocable power. A stockholder may
revoke any proxy which is not irrevocable by attending the meeting and voting in
person or by filing an instrument in writing revoking the proxy or by delivering
a proxy in accordance with applicable law bearing a later date to the Secretary
of the Corporation.
SECTION 10. ACTION WITHOUT MEETING. If and to the extent permitted by
the Certificate of Incorporation, any action which may be taken at any annual or
special meeting of stockholders may be taken without a meeting and without prior
notice if a consent in writing, setting forth the action so taken, shall be
signed by the holders of outstanding shares having not less than the minimum
number of votes that would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote thereon were present and voted.
Prompt notice of the taking of the corporate action without a meeting by less
than unanimous written consent shall be given to those stockholders who have not
consented in writing. Every written consent shall bear the date of signature of
each stockholder who signs the consent and no written consent shall be effective
to take the corporate action referred to therein unless, within sixty (60) days
of the earliest dated consent delivered to the Corporation in the manner
required by the Delaware General Corporation Law, written consents signed by a
sufficient number of stockholders to take such action are delivered to the
Corporation by delivery to its registered office in the State of Delaware, its
principal place of business or an officer or agent of the Corporation having
custody of the book in which proceedings of meetings of stockholders are
recorded. Delivery made to the Corporation's registered office shall be by hand
or by certified or registered mail, return receipt requested.
SECTION 11. 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 to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock, or for the purpose of
any other lawful action, the Board of Directors may fix, in advance, a record
date, which shall not be more than sixty (60) days nor less than ten (10) days
before the date of such meeting, nor more than sixty (60) 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. Stockholders on the record date are entitled to
notice and to vote or to receive the dividend, distribution or allotment of
rights or to exercise the rights, as the case may be, notwithstanding any
transfer of any shares on the books of the Corporation after the record date,
except as otherwise provided by agreement or by applicable law.
If no record date is fixed by the Board of Directors, the record date
for determining stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the business day next
preceding the day on which notice is given or, if notice is waived at the close
of business on the business day next preceding the day on which the meeting is
held. The record date for determining stockholders for any purpose other than
set forth in this Section 11 shall be at the close of business on the day on
which the Board adopts the resolution relating thereto, or the sixtieth (60th)
day prior to the date of such other action, whichever is later.
5
7
SECTION 12. LIST OF STOCKHOLDERS ENTITLED TO VOTE. The officer who has
charge of the stock ledger of the Corporation shall prepare and make, at least
ten (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 ten (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 of the Corporation who is present. 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 this Section or the
books of the Corporation, or to vote in person or by proxy at any meeting of
stockholders.
SECTION 13. INSPECTORS OF ELECTION. In advance of any meeting of
stockholders, the Board of Directors may appoint one or more persons as
inspectors of election to act at the meeting or any adjournment thereof. If an
inspector or inspectors are not so appointed, or if an appointed inspector fails
to appear or fails or refuses to act at a meeting, the Chairman of any meeting
of stockholders may, and on the request of any stockholder or his proxy shall,
appoint an inspector or inspectors of election at the meeting. The duties of
such inspector(s) shall include: determining the number of shares outstanding
and the voting power of each; the shares 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 consents; determining the result; and such acts as may
be proper to conduct the election or vote with fairness to all stockholders. In
the event of any dispute between or among the inspectors, the determination of
the majority of the inspectors shall be binding.
SECTION 14. CONDUCT OF MEETING. At each meeting of stockholders the
Chairman of the Board of Directors, if one shall have been elected, (or in his
absence or if one shall not have been elected, the President) shall act as
Chairman of the meeting. The Secretary (or in his or her absence or inability to
act, the person whom the Chairman of the meeting shall appoint Secretary of the
meeting) shall act as Secretary of the meeting and keep the minutes thereof. The
order and manner of transacting business at all meetings of stockholders
including the time when polls for voting shall open and shall be closed; shall
be determined by the Chairman of the meeting.
ARTICLE III
DIRECTORS
SECTION 1. POWERS. Except as otherwise required by law or provided by
the Certificate of Incorporation, the business and affairs of the Corporation
shall be managed by or under the direction of the Board of Directors.
SECTION 2. NUMBER AND ELECTION OF DIRECTORS. Subject to any limitations
in the Certificate of Incorporation, the authorized number of directors of the
Corporation shall be fixed
6
8
from time to time by the Board of Directors either by a resolution or an
amendment to this Bylaw duly adopted by the Board of Directors. Until changed in
the foregoing manner, the number of directors shall be seven (7). Directors
shall be elected at each annual meeting of stockholders to replace directors
whose terms then expire, and, subject to the provisions of Section 3 of this
Article III, each director elected shall hold office for a term of three (3)
years or until his successor is duly elected and qualified, or, if earlier,
until his or her death, resignation or removal. Any director may resign at any
time effective upon giving written notice to the Board of Directors, unless the
notice specifies a later time for such resignation to become effective. Unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective. If the resignation of a director is effective at
a future time, the Board of Directors may elect a successor prior to such
effective time to take office when such resignation becomes effective. Directors
need not be stockholders of the Corporation.
SECTION 3. CLASSIFIED BOARD OF DIRECTORS. The Board of Directors, shall
be divided into three (3) Classes, as nearly equal in number as possible,
designated Class I, Class II and Class III. The number of directors constituting
each Class shall be fixed from time to time by a resolution duly adopted by the
Board of Directors. The initial Class I and Class II Directors shall be elected
at the first annual meeting of the stockholders following the filing of this
Certificate of Incorporation and shall serve for a initial terms of two years
and three years thereafter, respectively, expiring at the third and fourth
annual meetings of the stockholders following the filing of this Certificate of
Incorporation, respectively. The initial Class III directors shall be elected at
the second annual meeting of the stockholders following the filing of this
Certificate of Incorporation and shall serve for an initial term of three years
thereafter, expiring at the fifth annual meeting of the stockholders following
the filing of this Certificate of Incorporation. At each annual meeting of the
stockholders following the filing of this Certificate of Incorporation,
commencing on the third annual meeting following the filing of this Certificate
of Incorporation, the successors of the Class of directors whose term expires at
that meeting shall be elected to hold office for a term expiring at the annual
meeting of the stockholders to be held in the third year following the year of
their election, with each director in each such Class to hold office until his
or her successor is duly elected and qualified. If any such annual meeting is
not held, the directors may be elected at any special meeting of stockholders
held for that purpose.
SECTION 4. REMOVAL. Directors may be removed from office by the holders
of a majority of the outstanding shares entitled to vote in an election of
directors but only with cause.
SECTION 5. VACANCIES. Subject to the limitations in the Certificate of
Incorporation, or elsewhere in these Bylaws, vacancies in the Board of Directors
resulting from death, resignation, removal or otherwise and newly created
directorships resulting from any increase in the authorized number of directors
may be filled by a majority of the directors then in office, although less than
a quorum or, if there is only one remaining director, by that director. Each
director so selected shall hold office for the remainder of the full term of
office of the former director which such director replaces and until his
successor is duly elected and qualified or, if earlier, until his or her death,
resignation or removal. No decrease in the authorized number of directors
constituting the Board of Directors shall shorten the term of any incumbent
directors.
7
9
SECTION 5. TIME AND PLACE OF MEETINGS. The Board of Directors shall
hold its meetings at such place, either within or without the State of Delaware,
and at such time as may be determined from time to time by the Board of
Directors.
SECTION 6. ANNUAL MEETING. The Board of Directors shall meet for the
purpose of organization, the election of officers and the transaction of other
business, as soon as practicable after each annual meeting of stockholders, on
the same day and at the same place where such annual meeting shall be held.
Notice of such meeting need not be given. In the event such annual meeting is
not so held, the annual meeting of the Board of Directors may be held at such
place, either within or without the State of Delaware, on such date and at such
time as shall be specified in a notice thereof given as hereinafter provided in
Section 8 of this Article III or in a waiver of notice thereof.
SECTION 7. REGULAR MEETINGS. Regular meetings of the Board of Directors
may be held at such places within or without the State of Delaware at such date
and time as the Board of Directors may from time to time determine and, if so
determined by the Board of Directors, notices thereof need not be given.
SECTION 8. SPECIAL MEETINGS. Special meetings of the Board of Directors
may be called by the Chairman of the Board, the President, or by any two (2)
directors. Notice of the date, time and place of special meetings shall be
delivered personally or by telephone to each director or sent by first-class
mail or telegram, charges prepaid, addressed to each director at the director's
address as it is shown on the records of the Corporation. In case the notice is
mailed, it shall be deposited in the United States mail at least four (4) days
before the time of the holding of the meeting. In case the notice is delivered
personally or by telephone or telegram, it shall be delivered personally or by
telephone or to the telegraph company at least forty-eight (48) hours before the
time of the holding of the meeting. The notice need not specify the purpose of
the meeting. A written waiver of any such notice signed by the person entitled
thereto, whether before or after the time stated therein, shall be deemed
equivalent to notice. Attendance of a person at a meeting shall constitute a
waiver of notice of such meeting, except when the person attends the meeting for
the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened.
SECTION 9. QUORUM; VOTE REQUIRED FOR ACTION; ADJOURNMENT. Except as
otherwise required by law, or provided in the Certificate of Incorporation or
these Bylaws, a majority of the directors shall constitute a quorum for the
transaction of business at all meetings of the Board of Directors and the
affirmative vote of not less than 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.
A meeting at which a quorum is initially present may continue to transact
business, notwithstanding the withdrawal of directors, if any action taken is
approved by at least a majority of the required quorum to conduct that meeting.
When a meeting is adjourned to another time or place (whether or not a quorum is
present), notice need not be given of the adjourned meeting if the time and
place thereof are announced at the meeting at which the adjournment is taken. At
the adjourned meeting, the Board of Directors may transact any business which
might have been transacted at the original meeting.
8
10
SECTION 10. ACTION BY WRITTEN CONSENT. Unless otherwise restricted by
the Certificate of Incorporation, 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 11. TELEPHONE MEETINGS. Unless otherwise restricted by the
Certificate of Incorporation, 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, as the
case may be, by conference telephone or similar communications equipment by
means of which all persons participating in the meeting can hear each other.
Participation in a meeting pursuant to this Section 11 shall constitute presence
in person at such meeting.
SECTION 12. COMMITTEES. The Board of Directors may, by resolution
passed by a majority of the entire Board, designate one or more committees, each
committee to consist of one or more of the directors of the Corporation. The
Board of Directors may designate one or more directors as alternate members of
any such committee, who may replace any absent or disqualified member at any
meeting of the committee. In the event of absence or disqualification of a
member of a committee, and in the absence of a designation by the Board of
Directors of an alternate member to replace the absent or disqualified member,
the committee member or members present at any meeting and not disqualified from
voting, whether or not he/she or they constitute a quorum, may unanimously
appoint another member of the Board of Directors to act at the meeting in the
place of the absent or disqualified member. Any such committee, to the extent
provided by resolution of the Board of Directors or in the Bylaws of the
Corporation, shall have and may exercise all the powers and authority of the
Board of Directors in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to the following matters: (i) approving or adopting, or
recommending to the stockholders, any action or matter expressly required by law
to be submitted to the stockholders for approval, or (ii) adopting, amending or
repealing any Bylaw of the Corporation. Each committee shall keep regular
minutes of its meetings and report to the Board of Directors when required.
SECTION 13. COMPENSATION. The directors may be paid such compensation
for their services as the Board of Directors shall from time to time determine.
SECTION 14. INTERESTED DIRECTORS. No contract or transaction between
the Corporation and one or more of its directors or officers, or between the
Corporation and any other Corporation, partnership, association, or other
organization in which one or more of its directors or officers are directors or
officers, or have a financial interest, shall be void or voidable solely for
this reason, or solely because the director or officer is present at or
participates in the meeting of the Board of Directors or the committee thereof
which authorizes the contract or transaction, or solely because his/her or their
votes are counted for such purpose if: (i) the material facts as to his or their
relationship or interest and as to the contract or transaction are disclosed or
are known to the Board of Directors or the committee, and the Board of Directors
or committee in good faith authorizes the contract or transaction by the
affirmative votes of a majority of the
9
11
disinterested directors, even though the disinterested directors be less than a
quorum; or (ii) the material facts as to his or their relationship or interest
and as to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stockholders; or (iii) the
contract or transaction is fair as to the Corporation as of the time it is
authorized, approved or ratified, by the Board of Directors, a committee
thereof, or the stockholders. Interested directors may be counted in determining
the presence of a quorum at a meeting of the Board of Directors or of a
committee which authorizes the contract or transaction.
10
12
ARTICLE IV
OFFICERS
SECTION 1. OFFICERS. The officers of the Corporation shall be a
President, a Secretary and a Chief Financial Officer. The Corporation may also
have, at the discretion of the Board of Directors, a Chairman of the Board, a
Vice Chairman of the Board, a Chief Executive Officer, one or more Vice
Presidents, one or more Assistant Financial Officers and Treasurers, one or more
Assistant Secretaries and such other officers as may be appointed in accordance
with the provisions of Section 3 of this Article IV.
SECTION 2. APPOINTMENT OF OFFICERS. The officers of the Corporation,
except such officers as may be appointed in accordance with the provisions of
Section 3 or Section 5 of this Article IV, shall be appointed by the Board of
Directors, and each shall serve at the pleasure of the Board, subject to the
rights, if any, of an officer under any contract of employment.
SECTION 3. SUBORDINATE OFFICERS. The Board of Directors may appoint,
and may empower the Chief Executive Officer, if one is appointed, or President,
to appoint such other officers as the business of the Corporation may require,
each of whom shall hold office for such period, have such authority and perform
such duties as are provided in the Bylaws or as the Board of Directors may from
time to time determine.
SECTION 4. REMOVAL AND RESIGNATION OF OFFICERS. Subject to the rights
of an officer under any contract, any officer may be removed at any time, with
or without cause, by the Board of Directors or, except in case of an officer
chosen by the Board of Directors, by any officer upon whom such power of removal
may be conferred by the Board of Directors. Any officer may resign at any time
by giving written notice to the Corporation. Any resignation shall take effect
at the date of the receipt of that notice or at any later time specified in that
notice; and, unless otherwise specified in that notice, the acceptance of the
resignation shall not be necessary to make it effective. Any resignation shall
be without prejudice to the rights of the Corporation under any contract to
which the officer is a party.
SECTION 5. VACANCIES IN OFFICES. A vacancy in any office because of
death, resignation, removal, disqualification or any other cause shall be filled
in the manner prescribed in these Bylaws for regular appointments to that
office.
SECTION 6. CHAIRMAN OF THE BOARD. The Chairman of the Board, if such an
officer is appointed, shall, if present, preside at meetings of the stockholders
and of the Board of Directors. He or she shall, in addition, perform such other
functions (if any) as may be prescribed by the Bylaws or the Board of Directors.
SECTION 7. CHIEF EXECUTIVE OFFICER. The Chief Executive Officer of the
Corporation, if such an officer is appointed, shall, subject to the control of
the Board of Directors, have general supervision, direction and control of the
business and the officers of the Corporation. He or she shall exercise the
duties usually vested in the chief executive officer of a Corporation and
perform such other powers and duties as may be assigned to him/her from time to
time by the Board of Directors or prescribed by the Bylaws. In the absence of
the Chairman of the Board
11
13
and any Vice Chairman of the Board, the Chief Executive Officer shall preside at
all meetings of the stockholders and of the Board of Directors.
SECTION 8. PRESIDENT. The President of the Corporation shall, subject
to the control of the Board of Directors and the Chief Executive Officer of the
Corporation, if there be such an officer, have general powers and duties of
management usually vested in the office of president of a Corporation and shall
have such other powers and duties as may be prescribed by the Board of Directors
or the Bylaws or the Chief Executive Officer of the Corporation. In the absence
of the Chairman of the Board, Vice Chairman of the Board and Chief Executive
Officer, the President shall preside at all meetings of the Board of Directors
and stockholders.
SECTION 9. VICE PRESIDENT. In the absence or disability of the
President, the Vice Presidents, if any, in order of their rank as fixed by the
Board of Directors or, if not ranked, a Vice President designated by the Board
of Directors, shall perform all the duties of the President, and when so acting
shall have all the powers of, and subject to all the restrictions upon, the
President. The Vice Presidents shall have such other powers and perform such
other duties as from time to time may be prescribed for them respectively by the
Board of Directors or the Bylaws, and the President, or the Chairman of the
Board.
SECTION 10. SECRETARY. The Secretary shall keep or cause to be kept, at
the principal executive office or such other place as the Board of Directors may
direct, a book of minutes of all meetings and actions of Directors, committees
of Directors, and stockholders, with the time and place of holding, whether
regular or special, and, if special, how authorized, the notice given, the names
of those present at Directors' meetings or committee meetings, the number of
shares present or represented at stockholders' meetings, and a summary of the
proceedings.
The Secretary shall keep, or cause to be kept, at the principal
executive office or at the office of the Corporation's transfer agent or
registrar, or such other place as the Board of Directors may direct, as
determined by resolution of the Board of Directors, a share register, or a
duplicate share register, showing the names of all stockholders and their
addresses, the number and classes of shares held by each, the number and date of
certificates issued for the same, and the number and date of cancellation of
every certificate surrendered for cancellation.
The Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and of the Board of Directors required by the Bylaws or by
law to be given, and he shall keep or cause to be kept the seal of the
Corporation in safe custody, and shall have such powers and perform such other
duties as may be prescribed by the Board of Directors or by the Bylaws.
SECTION 11. CHIEF FINANCIAL OFFICER. Unless the Board of Directors
specifies otherwise, the Chief Financial Officer shall be the Treasurer of the
Corporation and shall keep and maintain, or cause to be kept and maintained,
adequate and correct books and records of accounts of the properties and
business transactions of the Corporation. The Chief Financial Officer shall
deposit all moneys and other valuables in the name and to the credit of the
Corporation with such depositories as may be designated by the Board of
Directors. He or she shall make such disbursements of the funds of the
Corporation as are authorized and shall render from time to time an account of
all of his or her transactions as Chief Financial Officer and of the financial
12
14
condition of the Corporation. The Chief Financial Officer shall also have such
other powers and perform such other duties as may be prescribed by the Board of
Directors or the Bylaws.
ARTICLE V
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 by the Chairman or Vice Chairman of the Board of Directors, or the
President or a Vice President and by the Treasurer or an Assistant Treasurer or
the Secretary or an Assistant Secretary of the Corporation, certifying the
number of shares owned by such stockholder in the Corporation.
SECTION 2. SIGNATURES. Any or all of the signatures on the certificate
may be a facsimile. In case any officer, transfer agent 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 were such officer, transfer agent or registrar at the date of issue.
SECTION 3. LOST CERTIFICATES. Except as provided in this Section 3, no
new certificate for shares shall be issued in lieu of an old one unless the
latter is surrendered and cancelled at the same time. The Corporation may issue
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 to be lost,
stolen or destroyed. The Board of Directors may in its discretion require a bond
in such form and amount and with such surety as it may determine, before issuing
a new certificate.
SECTION 4. TRANSFERS. Stock of the Corporation shall be transferable in
the manner prescribed by law and in these Bylaws or in any agreement with the
stockholder making the transfer. 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 canceled before a new certificate shall be
issued.
SECTION 5. RECORD HOLDERS. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the record
holder of shares to receive dividends, and to vote as such record holder, and to
hold liable for calls and assessments a person registered on its books as the
record holder 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 required by law.
SECTION 6. TRANSFER AGENT. The Board of Directors may at its discretion
appoint one or more transfer agents, registrars and agents for making payment
upon any class of stock, bond, debenture or other security of the Corporation.
Such agents shall be located either within or outside of Delaware. They shall be
entitled to such compensation as may be agreed.
13
15
ARTICLE VI
INDEMNIFICATION
SECTION 1. RIGHT TO INDEMNIFICATION. Each person who was or is made a
party or is threatened to be made a party to or is otherwise involved in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), by reason of the fact that he or she
is or was a director or officer of the Corporation or is or was serving at the
request of the Corporation as a director or officer of another Corporation or of
a partnership, joint venture, trust or other enterprise, including service with
respect to employee benefit plans (hereinafter an "indemnitee"), whether the
basis of such proceeding is alleged action in an official capacity as a director
or officer or in any other capacity while serving as a director or officer,
shall be indemnified and held harmless by the Corporation to the fullest extent
authorized by the Delaware General Corporation Law, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the Corporation to provide broader indemnification
rights than such law permitted the Corporation to provide prior to such
amendment), against all expense, liability and loss (including attorneys' fees,
judgments, fines, ERISA excise taxes or penalties and amounts paid in
settlement) reasonably incurred or suffered by such indemnitee in connection
therewith and such indemnification shall continue as to an indemnitee who has
ceased to be a director or officer and shall inure to the benefit of the
indemnitee's heirs, executors and administrators; provided, however, that,
except as provided in Section 2 of this Article VI with respect to proceedings
to enforce rights to indemnification, the Corporation shall indemnify any such
indemnitee in connection with a proceeding (or part thereof) initiated by such
indemnitee only if such proceeding (or part thereof) was authorized by the Board
of Directors of the Corporation. The right to indemnification conferred in this
Section shall be a contract right and shall include the right to be paid by the
Corporation the expenses incurred in defending any such proceeding in advance of
its final disposition (hereinafter an "advancement of expenses"); provided,
however, that, if the Delaware General Corporation Law requires, an advancement
of expenses incurred by an indemnitee in his capacity as a director or officer
(and not in any other capacity in which service was or is rendered by such
indemnitee, including without limitation, service to an employee benefit plan)
shall be made only upon delivery to the Corporation of an undertaking, by or on
behalf of such indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right to appeal that such indemnitee is not entitled to be indemnified
for such expenses under this Article VI or otherwise (hereinafter an
"undertaking").
SECTION 2. RIGHT OF INDEMNITEE TO BRING SUIT. If a claim under Section
1 of this Article VI is not paid in full by the Corporation within forty-five
(45) days after a written claim has been received by the Corporation, the
indemnitee may at any time thereafter bring suit against the Corporation to
recover the unpaid amount of the claim. If successful in whole or part in any
such suit or in a suit brought by the Corporation to recover an advancement of
expenses pursuant to the terms of an undertaking, the indemnitee shall be
entitled to be paid also the expense of prosecuting or defending such suit. In
(i) any suit brought by the indemnitee to enforce a right to indemnification
hereunder (but not in a suit brought by the indemnitee to enforce a right to an
advancement of expenses) it shall be a defense that, and (ii) any suit by the
Corporation to recover an advancement of expenses pursuant to the terms of an
undertaking the Corporation shall be entitled to recover such expenses upon a
final adjudication that, the indemnitee has not
14
16
met the applicable standard of conduct set forth in the Delaware General
Corporation Law. Neither the failure of the Corporation (including its Board of
Directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such suit that indemnification of the
indemnitee is proper in the circumstances because the indemnitee has met the
applicable standard of conduct set forth in the Delaware General Corporation
Law, nor an actual determination by the Corporation (including its Board of
Directors, independent legal counsel, or its stockholders) that the indemnitee
has not met such applicable standard of conduct, shall create a presumption that
the indemnitee has not met the applicable standard of conduct or, in the case of
such a suit brought by indemnitee, be a defense to such suit. In any suit
brought by the indemnitee to enforce a right hereunder, or by the Corporation to
recover an advancement of expenses pursuant to the terms of an undertaking, the
burden of proving that the indemnitee is not entitled to be indemnified or to
such advancement of expenses under this Article VI or otherwise shall be on the
Corporation.
SECTION 3. NON-EXCLUSIVITY OF RIGHTS. The rights of indemnification and
to the advancement of expenses conferred in this Article VI shall not be
exclusive of any other right which any person may have or hereafter acquire
under any statute, provision of the Certificate of Incorporation, Bylaws,
agreement, vote of stockholders or disinterested directors or otherwise.
SECTION 4. INSURANCE. The Corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent of the
Corporation or another Corporation, partnership, joint venture, trust or other
enterprise against any expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law. In the event that
any insurance maintained by the Corporation does not provide full coverage,
either by the requirement of a deductible or co-payment or by the fact that the
expenses actually and reasonably incurred exceed the insurance limits or for any
other reason, the Corporation shall have the power to indemnify that agent or
person for the amount not covered by the insurance; provided, however, that the
Corporation shall have the power to indemnify the agent or person against such
liability notwithstanding any insurance and in accordance with the provisions of
this Article VI.
SECTION 5. INDEMNIFICATION OF EMPLOYEES OR AGENTS OF THE CORPORATION.
The Corporation may, to the extent authorized from time to time by the Board of
Directors, grant rights to indemnification and to the advancement of expenses,
to any employee or agent of the Corporation to the fullest extent of the
provisions of this Article VI with respect to the indemnification and
advancement of expenses of directors or officers of the Corporation.
SECTION 6. INDEMNIFICATION CONTRACTS. The Board of Directors is
authorized to enter into a contract with any director, officer, employee or
agent of the Corporation, or any person serving at the request of the
Corporation as a director, officer, employee or agent of another Corporation,
partnership, joint venture, trust or other enterprise, including employee
benefit plans, providing for indemnification rights equivalent to or, if the
Board of Directors so determines, greater than, those provided for in this
Article VI.
SECTION 7. EFFECT OF TERMINATION OF ACTION. The termination of any
action, suit or proceeding by judgment, order, settlement, or conviction or upon
a plea of nolo contendere or its
15
17
equivalent shall not of itself create a presumption that the person seeking
indemnification did not act in good faith and in the best interests of the
Corporation and, with respect to any criminal action or proceeding, had a
reasonable cause to believe that his conduct was unlawful. Entry of a judgment
by a consent as part of a settlement shall not be deemed a final adjudication of
liability for negligence or misconduct in the performance of duty, nor of any
other issue or matter.
SECTION 8. EFFECT OF AMENDMENT. Any amendment, repeal or modification
of any provision of this Article VI by the stockholders or the directors of the
Corporation shall not adversely affect any right or protection of a director or
officer of the Corporation existing at the time of such amendment, repeal or
modification.
ARTICLE VII
GENERAL PROVISIONS
SECTION 1. DIVIDENDS. Subject to limitations contained in the General
Corporation Law of the State of Delaware and the Certificate of Incorporation,
the Board of Directors may declare and pay dividends upon the shares of capital
stock of the Corporation, which dividends may be paid either in cash, securities
of the Corporation or other property.
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 Corporation shall have a corporate seal
in such form as shall be prescribed by the Board of Directors.
SECTION 5. VOTING OF STOCK OWNED BY THE CORPORATION. The Chairman of
the Board, the Chief Executive Officer (if either such officers have been
appointed) the President and any other officer of the Corporation authorized by
the Board of Directors shall have power, on behalf of the Corporation, to
attend, vote and grant proxies to be used at any meeting of stockholders of any
Corporation (except this Corporation) in which the Corporation may hold stock.
SECTION 6. CONSTRUCTION AND DEFINITIONS. Unless the context requires
otherwise, the general provisions, rules of construction and definitions in the
General Corporation Law of the State of Delaware shall govern the construction
of these Bylaws.
SECTION 7. LOANS TO OFFICERS AND EMPLOYEES. The Corporation may lend
money to, guarantee any obligation of or otherwise assist any officer or other
employee of the Corporation or of any of its subsidiaries, including any officer
or employee who is director of the Corporation or any of its subsidiaries,
whenever, in the judgment of the Board of Directors, such loan, guaranty or
assistance may reasonably be expected to benefit the Corporation. The loan,
guaranty or other assistance may be with or without interest and may be
unsecured or secured in such manner as the Board of Directors shall approve,
including, without limitation, a pledge of shares of stock of the Corporation.
16
18
SECTION 8. AMENDMENTS. Subject to the General Corporation Law of the
State of Delaware, the Certificate of Incorporation and these Bylaws, the Board
of Directors may by the affirmative vote of a majority of the entire Board of
Directors alter, amend, change, add to or repeal these Bylaws, or adopt other
Bylaws as in their judgment may be advisable for the regulation of the conduct
of the affairs of the Corporation. These Bylaws may also be altered, changed,
added to, amended or repealed by the affirmative vote of sixty-six and
two-thirds percent (66 2/3%) percent of outstanding shares of the Corporation
entitled to vote on such matters, voting as a single class.
17