AMENDED AND RESTATED
BY-LAWS OF
ASBURY AUTOMOTIVE GROUP, INC.
Incorporated Under The Laws
of the State of Delaware
April 13, 2004
BY-LAWS
BY-LAWS
of
ASBURY AUTOMOTIVE GROUP, INC.
ARTICLE I
Offices
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SECTION 1.01. Delaware Office. The principal office of Asbury Automotive
Group, Inc. (the Corporation) in the State of Delaware shall be in the City of
Wilmington, County of New Castle, and the resident agent in charge thereof shall
be The Corporation Trust Company.
SECTION 1.02. Other Offices. The Corporation may have offices at such other
place or places as from time to time the board of directors of the Corporation
(the "Board of Directors", and each member thereof, a "Director") may determine
or the business of the Corporation may require.
SECTION 1.03. Books and Records. The books and records of the Corporation
may be kept outside the State of Delaware at such place or places as may from
time to time be designated by the Board of Directors.
ARTICLE II
Meetings of Stockholders
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SECTION 2.01. Annual Meeting. The annual meeting of the stockholders of the
Corporation shall be held on such date and at such time as may be fixed by
resolution of the Board of Directors.
SECTION 2.02. Special Meeting. Except as otherwise required by law and
subject to the rights of the holders of any class or series of stock having a
preference over the common stock, par value $0.01 per share, of the Corporation
(the "Common Stock") as to dividends or upon liquidation, dissolution or winding
up, special meetings of stockholders of the Corporation for any purpose or
purposes may be called only by (a) the Board of Directors pursuant to a
resolution stating the purpose or purposes thereof approved by a majority of the
total number of Directors which the Corporation would have if there were no
vacancies or unfilled newly-created directorships (the "Whole Board"), or (b) by
the Chairman of the Board of Directors (the "Chairman of the Board"), either
upon his own initiative or the written request of the holders of at least 50% of
the voting power of all Voting Stock then outstanding. No business other than
that stated in the notice shall be transacted at any special meeting.
SECTION 2.03. Place of Meeting. The Board of Directors or the Chairman of
the Board, as the case may be, may designate the place, if any, of meeting for
any annual meeting or for any special meeting of the stockholders. If no
designation is so made, the place of meeting shall be the principal office of
the Corporation.
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SECTION 2.04. Notice of Meeting. Notice, stating the place, day and hour of
the meeting and the purpose or purposes for which the meeting is called, shall
be delivered by the Corporation not less than 10 calendar days nor more than 60
calendar days before the date of the meeting, either personally, by mail or by
other lawful means, to each stockholder of record entitled to vote at such
meeting. If mailed, such notice shall be deemed to be delivered when deposited
in the United States mail with postage thereon prepaid, addressed to the
stockholder at such person's address as it appears on the stock transfer books
of the Corporation. Such further notice shall be given as may be required by
law. Only such business shall be conducted at a special meeting of stockholders
as shall have been brought before the meeting pursuant to the Corporation's
notice of meeting. Meetings may be held without notice if all stockholders
entitled to notice are present (except when stockholders entitled to notice
attend the meeting for the express purpose of objecting, at the beginning of the
meeting, because the meeting is not lawfully called or convened), or if notice
is waived by those not present in accordance with Section 6.04. Any previously
scheduled meeting of the stockholders may be postponed, and any special meeting
of the stockholders may be canceled, by resolution of the Board of Directors,
upon public notice given prior to the date previously scheduled for such meeting
of stockholders.
SECTION 2.05. Quorum and Adjournment; Voting. Except as otherwise provided
by law or by the Certificate of Incorporation of the Corporation (the
"Certificate of Incorporation"), the holders of a majority of the voting power
of all outstanding shares of the Corporation entitled to vote generally in the
election of Directors (the "Voting Stock"), represented in person or by proxy,
shall constitute a quorum at a meeting of stockholders, except that when
specified business is to be voted on by a class or series of stock voting as a
class, the holders of a majority of the voting power of the outstanding shares
of such class or series shall constitute a quorum of such class or series for
the transaction of such business. The chairman of the meeting may adjourn the
meeting from time to time, whether or not there is such a quorum. No notice of
the time and place of adjourned meetings need be given except as required by
law. The stockholders present at a duly called meeting at which a quorum is
present may continue to transact business until adjournment, notwithstanding the
withdrawal of enough stockholders to leave less than a quorum.
SECTION 2.06. Proxies. At all meetings of stockholders, a stockholder may
vote by proxy in accordance with the General Corporation Law of the State of
Delaware (the "DGCL") or by such person's duly authorized attorney in fact.
SECTION 2.07. Notice of Stockholder Business and Nominations. (a) Annual
Meetings of Stockholders. (i) Nominations of persons for election to the Board
of Directors and the proposal of business to be considered by the stockholders
may be made at an annual meeting of stockholders (A) pursuant to the
Corporation's notice of meeting pursuant to Section 2.04, (B) by or at the
direction of the Chairman of the Board or (C) by any stockholder of the
Corporation who was a stockholder of record at the time of giving of notice
provided for in this By-Law, who is entitled to vote at the meeting and who
complies with the notice procedures set forth in this By-Law.
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(ii) For nominations or other business to be properly brought before an
annual meeting by a stockholder pursuant to clause (C) of paragraph (a)(i) of
this Section 2.07, the stockholder must have given timely notice thereof in
writing to the Secretary of the Corporation and such other business must
otherwise be a proper matter for stockholder action. To be timely, a
stockholder's notice shall be delivered to the Secretary of the Corporation at
the principal executive offices of the Corporation not later than the close of
business on the ninetieth calendar day nor earlier than the close of business on
the one hundred twentieth calendar day prior to the first anniversary of the
preceding year's annual meeting; provided, however, that in the event that the
date of the annual meeting is more than thirty calendar days before or more
than sixty calendar days after such anniversary date, notice by the stockholder
to be timely must be so delivered not earlier than the close of business on the
one hundred twentieth calendar day prior to such annual meeting and not later
than the close of business on the later of the ninetieth calendar day prior to
such annual meeting or the tenth calendar day following the calendar day on
which public announcement of the date of such meeting is first made by the
Corporation. For purposes of determining whether a stockholder's notice shall
have been delivered in a timely manner for the annual meeting of stockholders in
2002, the first anniversary of the previous year's meeting shall be deemed to be
June 1, 2002. In no event shall the public announcement of an adjournment or
postponement of an annual meeting commence a new time period (or extend any time
period) for the giving of a stockholder's notice as described above. Such
stockholder's notice shall set forth (A) as to each person whom the stockholder
proposes to nominate for election or reelection as a Director all information
relating to such person that is required to be disclosed in solicitations of
proxies for election of Directors in an election contest, or is otherwise
required, in each case pursuant to Regulation 14A under the Securities Exchange
Act of 1934, as amended (the "Exchange Act") (including such person's written
consent to being named in the proxy statement as a nominee and to serving as a
Director if elected); (B) as to any other business that the stockholder proposes
to bring before the meeting, 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 these By-Laws, 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 the beneficial
owner, if any, on whose behalf the proposal is made; and (C) as to the
stockholder giving the notice and the beneficial owner, if any, on whose behalf
the nomination or proposal is made (1) the name and address of such stockholder,
as they appear on the Corporation's books, and of such beneficial owner, (2) the
class and number of shares of stock of the Corporation which are owned
beneficially and of record by such stockholder and such beneficial owner, (3) a
representation that the stockholder is a holder of record of stock of the
Corporation entitled to vote at such meeting and intends to appear in person or
by proxy at the meeting to propose such business or nomination, and (4) a
representation whether the stockholder or the beneficial owner, if any, intends
or is part of a group which intends (x) to deliver a proxy statement and/or form
of proxy to holders of at least the percentage of the Corporation's outstanding
capital stock required to approve or adopt the proposal or elect the nominee
and/or (y) otherwise to solicit proxies from stockholders in support of such
proposal or nomination. The foregoing notice requirements shall be deemed
satisfied by a stockholder if the stockholder has notified the Corporation of
his or her intention to present a proposal at an annual meeting in compliance
with Rule 14a-8 (or any successor thereof) promulgated under the Exchange Act
and such stockholder's proposal has been included in a proxy statement that has
been prepared by the Corporation to solicit proxies for such annual meeting. The
Corporation may require any proposed nominee to furnish such other information
as it may reasonably require to determine the eligibility of such proposed
nominee to serve as a Director.
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(iii) Notwithstanding anything in the second sentence of paragraph (a)(ii)
of this Section 2.07 to the contrary, in the event that the number of Directors
to be elected to the Board of Directors at an annual meeting is increased and
there is no public announcement by the Corporation naming all of the nominees
for Director or specifying the size of the increased Board of Directors at least
one hundred calendar days prior to the first anniversary of the preceding year's
annual meeting, a stockholder's notice required by this By-Law shall also be
considered timely, but only with respect to nominees for any new positions
created by such increase, if it shall be delivered to the Secretary at the
principal executive offices of the Corporation not later than the close of
business on the tenth calendar day following the day on which such public
announcement is first made by the Corporation.
(b) Special Meetings of Stockholders. Only such business shall be conducted
at a special meeting of stockholders as shall have been brought before the
meeting pursuant to the Corporation's notice of meeting under Section 2.04.
Nominations of persons for election to the Board of Directors may be made at a
special meeting of stockholders at which Directors are to be elected (i)
pursuant to the Corporation's notice of meeting, (ii) by or at the direction of
the Chairman of the Board or (iii) provided that the Board of Directors has
determined that Directors shall be elected at such meeting, by any stockholder
of the Corporation who is a stockholder of record at the time of giving of
notice provided for in this By-Law, who shall be entitled to vote at the meeting
and who complies with the notice procedures set forth in this By-Law. In the
event the Corporation calls a special meeting of stockholders for the purpose of
electing one or more Directors to the Board of Directors, any stockholder
entitled to vote in such election of Directors may nominate pursuant to clause
(iii) of the immediately preceding sentence of this Section 2.07(b) a person or
persons (as the case may be), for election to such position (s) as specified in
the Corporation's notice of meeting, if the stockholder's notice required by
paragraph (a)(ii) of this Section 2.07 shall be delivered to the Secretary at
the principal executive offices of the Corporation not earlier than the close of
business on the one hundred twentieth calendar day prior to such special meeting
and not later than the close of business on the later of the ninetieth calendar
day prior to such special meeting or the tenth calendar day following the day on
which public announcement is first made of the date of the special meeting and
of the nominees proposed by the Board of Directors to be elected at such
meeting. In no event shall the public announcement of an adjournment or
postponement of a special meeting commence a new time period (or extend any time
period) for the giving of a stockholder's notice as described above.
(c) General. (i) Only such persons who are nominated in accordance with the
procedures set forth in this Section 2.07 shall be eligible to serve as
Directors and only such business shall be conducted at a meeting of stockholders
as shall have been brought before the meeting in accordance with the procedures
set forth in this By-Law. Except as otherwise provided by law, the Certificate
of Incorporation or these By-Laws, the chairman of the meeting shall have the
power and duty to determine whether a nomination or any business proposed to be
brought before the meeting was made or proposed, as the case may be, in
accordance with the procedures set forth in this Section 2.07 (including whether
the stockholder or beneficial owner, if any, on whose behalf the nomination or
proposal is made solicited (or is part of a group which solicited) or did not so
solicit, as the case may be, proxies in support of such stockholder's nominee or
proposal in compliance with such stockholder's representation as required by
clause (a)(ii)(C)(4) of this Section 2.07) and, if any proposed nomination or
business is not in compliance with this By-Law, to declare that such defective
proposal or nomination shall be disregarded. Notwithstanding the foregoing
provisions of this Section 2.07, if the stockholder (or a qualified
representative of the stockholder) does not appear at the annual or special
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meeting of stockholders of the Corporation to present a nomination or business,
such nomination shall be disregarded and such proposed business shall not be
transacted, notwithstanding that proxies in respect of such vote may have been
received by the Corporation.
(ii) For purposes of this By-Law, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service or in a document publicly
filed by the Corporation with the Securities and Exchange Commission pursuant
to Section 13, 14 or 15(d) of the Exchange Act.
(iii) Notwithstanding the foregoing provisions of this Section 2.07, a
stockholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters set
forth in this Section 2.07. Nothing in this Section 2.07 shall be deemed to
affect any rights (a) of stockholders to request inclusion of proposals in the
Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act or
(b) of the holders of any series of preferred stock of the Corporation
("Preferred Stock") to elect Directors under an applicable Preferred Stock
Designation (as defined in the Certificate of Incorporation).
SECTION 2.08. Procedure for Election of Directors; Required Vote. Election
of Directors at all meetings of the stockholders at which Directors are to be
elected shall be by ballot, and, subject to the rights of the holders of any
series of Preferred Stock to elect Directors under an applicable Preferred Stock
Designation, a plurality of the votes cast thereat shall elect Directors. Except
as otherwise provided by law, the Certificate of Incorporation, a Preferred
Stock Designation, applicable stock exchange rules or other rules and
regulations applicable to the Corporation or these By-Laws, in all matters other
than the election of Directors, the affirmative vote of a majority of the voting
power of the shares present in person or represented by proxy at the meeting and
entitled to vote on the matter shall be the act of the stockholders.
SECTION 2.09. Inspectors of Elections; Opening and Closing the Polls. (a)
The Board of Directors by resolution shall appoint, or shall authorize an
officer of the Corporation to appoint, one or more inspectors, which inspector
or inspectors may include individuals who serve the Corporation in other
capacities, including, without limitation, as officers, employees, agents or
representatives, to act at the meetings of stockholders and make a written
report thereof. One or more persons may be designated as alternate inspector(s)
to replace any inspector who fails to act. If no inspector or alternate has been
appointed to act or is able to act at a meeting of stockholders, the chairman of
the meeting shall appoint one or more inspectors to act at the meeting. Each
inspector, before discharging such person's duties, shall take and sign an oath
faithfully to execute the duties of inspector with strict impartiality and
according to the best of such person's ability. The inspectors shall have the
duties prescribed by law.
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(b) The date and time of the opening and the closing of the polls for each
matter upon which the stockholders will vote at a meeting shall be announced at
the meeting by the person presiding over the meeting. The Board of Directors may
adopt by resolution such rules and regulations for the conduct of the meeting of
stockholders as it shall deem appropriate. Except to the extent inconsistent
with such rules and regulations as adopted by the Board of Directors, the person
presiding over any meeting of stockholders shall have the right and authority to
convene and to adjourn the meeting, to prescribe such rules, regulations and
procedures and to do all such acts as, in the judgment of such presiding
officer, are appropriate for the proper conduct of the meeting. Such rules,
regulations or procedures, whether adopted by the Board of Directors or
prescribed by the presiding officer of the meeting, may include, without
limitation, the following: (i) an agenda or order of business for the meeting;
(ii) rules and procedures for maintaining order at the meeting and the safety of
those present; (iii) limitations on attendance at or participation in the
meeting to stockholders of record of the Corporation, their duly authorized and
constituted proxies or such other persons as the chairman of the meeting shall
determine; (iv) restrictions on entry to the meeting after the time fixed for
the commencement thereof; and (v) limitations on the time allotted to questions
or comments by participants. The presiding officer at any meeting of
stockholders, in addition to making any other determinations that may be
appropriate to the conduct of the meeting, shall, if the facts warrant,
determine and declare to the meeting that a matter or business was not properly
brought before the meeting and if such presiding officer should so determine,
such person shall so declare to the meeting that any such matter or business not
properly brought before the meeting shall not be transacted or considered.
Unless and to the extent determined by the Board of Directors or the person
presiding over the meeting, meetings of stockholders shall not be required to be
held in accordance with the rules of parliamentary procedure.
ARTICLE III
Board of Directors
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SECTION 3.01. General Powers. The business and affairs of the Corporation
shall be managed by or under the direction of the Board of Directors. In
addition to the powers and authorities by these By-Laws expressly conferred upon
them, the Board of Directors may exercise all such powers of the Corporation and
do all such lawful acts and things as are not by statute or by the Certificate
of Incorporation or by these By-Laws required to be exercised or done by the
stockholders.
SECTION 3.02. Regular Meetings. A regular meeting of the Board of Directors
shall be held without other notice than this By-Law in conjunction with the
annual meeting of stockholders. The Board of Directors may, by resolution,
provide the time and place for the holding of additional regular meetings
without other notice than such resolution.
SECTION 3.03. Special Meetings. Special meetings of the Board of Directors
shall be called it the request of the Chairman of the Board, the President and
Chief Executive Officer or a majority of the Board of Directors then in office.
The person or persons authorized to call special meetings of the Board of
Directors may fix the place and time of the meetings.
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SECTION 3.04. Notice. Notice of any special meeting of Directors shall be
given to each Director at such person's business or residence in writing by hand
delivery, first-class or overnight mail or courier service, telegram or
facsimile transmission, orally by telephone or any other lawful means. If mailed
by first-class mail, such notice shall be deemed adequately delivered when
deposited in the United States mail so addressed, with postage thereon prepaid,
at least 5 calendar days before such meeting. If by telegram, overnight mail or
courier service, such notice shall be deemed adequately delivered when the
telegram is delivered to the telegraph company or the notice is delivered to the
overnight mail or courier service company at least 24 hours before such meeting.
If by facsimile transmission, such notice shall be deemed adequately delivered
when the notice is transmitted at least 12 hours before such meeting. If by
telephone, by hand delivery or by other lawful means, the notice shall be given
at least 12 hours prior to the time set for the meeting. Neither the business to
be transacted at, nor the purpose of, any regular or special meeting of the
Board of Directors need be specified in the notice of such meeting, except for
amendments to these By-Laws, as provided under Section 8.01. A meeting may be
held at any time without notice if all the Directors are present (except when
Directors attend for the express purpose of objecting, at the beginning of the
meeting, because it is not lawfully called or conveyed) or if those not present
waive notice of the meeting either before or after such meeting.
SECTION 3.05. Action By Consent of Board of Directors. Any action required
or permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting if all members of the Board of
Directors or committee, as the case may be, consent thereto in accordance with
applicable law.
SECTION 3.06. Conference Telephone Meetings. Members of the Board of
Directors or any committee thereof may participate in a meeting of the Board of
Directors or such committee by means of conference telephone or other
communications equipment by means of which all persons participating in the
meeting can hear each other, and such participation in a meeting shall
constitute presence in person at such meeting.
SECTION 3.07. Quorum. Subject to Article VI of the Certificate of
Incorporation, a whole number of Directors equal to at least a majority of the
Whole Board shall constitute a quorum for the transaction of business, but if at
any meeting of the Board of Directors there shall be less than a quorum present,
a majority of the Directors present may adjourn the meeting from time to time
without further notice. The act of the majority of the Directors present at a
meeting at which a quorum is present shall be the act of the Board of Directors.
SECTION 3.08. Committees of the Board of Directors. (a) The Board of
Directors may from time to time designate committees, which shall consist of one
or more Directors. The Board of Directors may designate one or more Directors as
alternate members of any committee, who may replace any absent or disqualified
member at any meeting of the committee. Any such committee may, to the extent
permitted by law, exercise such powers and shall have such responsibilities as
shall be specified in the designating resolution. In the absence or
disqualification of any member of such committee or committees, the member or
members thereof present at any meeting and not disqualified from voting, whether
or not constituting a quorum, may unanimously appoint another member of the
Board of Directors to act at the meeting in the place of any such absent or
disqualified member.
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(b) A majority of any committee may determine its action and fix the time
and place of its meetings, unless the Board of Directors shall otherwise
provide. Notice of such meetings shall be given to each member of the committee
in the manner provided for in Section 3.04. The Board of Directors shall have
power at any time to fill vacancies in, to change the membership of, or to
dissolve any such committee. Nothing herein shall be deemed to prevent the Board
of Directors from appointing one or more committees consisting in whole or in
part of persons who are not Directors; provided, however, that no such committee
shall have or may exercise any authority of the Board of Directors.
SECTION 3.09. Records. The Board of Directors shall cause to be kept a
record containing the minutes of the proceedings of the meetings of the Board of
Directors and of the stockholders, appropriate stock books and registers and
such books of records and accounts as may be necessary for the proper conduct of
the business of the Corporation.
SECTION 3.10. Chairman of the Board. A Chairman of the Board shall be chosen
from among the Directors. The Chairman of the Board shall preside at all
meetings of the stockholders and of the Board of Directors. The Chairman of the
Board shall have such other powers and duties as may from time to time be
conferred by the Board of Directors. The Board of Directors also may elect a
Vice-Chairman to act in the place of the Chairman of the Board upon his or her
absence or inability to act.
ARTICLE IV
Officers
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SECTION 4.01. Elected Officers. The elected officers of the Corporation
shall be a President and Chief Executive Officer, a Secretary, a Treasurer, and
such other officers (including, without limitation, Senior Vice Presidents and
Executive Vice Presidents and Vice Presidents) as the Board of Directors from
time to time may deem proper. All officers elected by the Board of Directors
shall each have such powers and duties as generally pertain to their respective
offices, subject to the specific provisions of this Article IV. Such officers
shall also have such powers and duties as from time to time may be conferred by
the Board of Directors or by any committee thereof. The Board of Directors or
any committee thereof may from time to time elect, or the Chairman of the Board
or President and Chief Executive Officer may appoint, such other officers
(including one or more Vice Presidents, Controllers, Assistant Secretaries and
Assistant Treasurers), as may be necessary or desirable for the conduct of the
business of the Corporation. Such other officers and agents shall have such
duties and shall hold their offices for such terms as shall be provided in these
By-Laws or as may be prescribed by the Board of Directors or such committee or
by the Chairman of the Board or President and Chief Executive Officer, as the
case may be.
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SECTION 4.02. Election and Term of Office. The elected officers of the
Corporation shall be elected annually by the Board of Directors at the regular
meeting of the Board of Directors held in conjunction with the annual meeting of
the stockholders. If the election of officers shall not be held at such meeting,
such election shall be held as soon thereafter as convenient. Each officer shall
hold office until such person's successor shall have been duly elected and shall
have qualified or until such person's death or until he shall resign or be
removed pursuant to Section 4.08.
SECTION 4.03. President; Chief Executive Officer. The President shall be
the Chief Executive Officer of the Corporation, shall act in a general executive
capacity and shall be responsible for the administration and operation of the
Corporation's business and general supervision of its policies and affairs. The
President and Chief Executive Officer, if he or she is also a Director, shall,
in the absence of or because of the inability to act of the Chairman or Vice
Chairman of the Board, perform all duties of the Chairman of the Board and
preside at all meetings of stockholders and of the Board of Directors.
SECTION 4.04. Vice Presidents. Each Senior Vice President and Executive
Vice President and any Vice President shall have such powers and shall perform
such duties as shall be assigned to such person by the Board of Directors or by
the President and Chief Executive Officer.
SECTION 4.05. (a) Treasurer. The Treasurer shall exercise general
supervision over the receipt, custody and disbursement of corporate funds. The
Treasurer shall cause the funds of the Corporation to be deposited in such banks
as may be authorized by the Board of Directors, or in such banks as may be
designated as depositories in the manner provided by resolution of the Board of
Directors. The Treasurer shall have such further powers and duties and shall be
subject to such directions as may be granted or imposed from time to time by the
Board of Directors, the Chairman of the Board or the President and Chief
Executive Officer.
(b) The Board of Directors, the Chairman of the Board or the President
and Chief Executive Officer may designate one or more Assistant Treasurers who
shall have such of the authority and perform such of the duties of the Treasurer
as may be assigned to them by the Board of Directors, the Chairman of the Board
or the President and Chief Executive Officer. During the Treasurer's absence or
inability, the Treasurer's authority and duties shall be possessed by such
Assistant Treasurer' s) as the Board of Directors, the Chairman of the Board or
the President and Chief Executive Officer may designate.
SECTION 4.06. Secretary. (a) The Secretary shall keep or cause to be kept
in one or more books provided for that purpose, the minutes of all meetings of
the Board of Directors, the committees of the Board of Directors and the
stockholders; shall see that all notices are duly given in accordance with the
provisions of these By-Laws and as required by law; shall be custodian of the
records and the seal of the Corporation and affix and attest the seal to all
stock certificates of the Corporation (unless the seal of the Corporation on
such certificates shall be a facsimile, as hereinafter provided) and affix and
attest the seal to all other documents to be executed on behalf of the
Corporation under its seal and shall see that the books, reports, statements,
certificates and other documents and records required by law to be kept and
filed are properly kept and filed; and in general, shall perform all the duties
incident to the office of Secretary and such other duties as from time to time
may be assigned to the Secretary by the Board of Directors, the Chairman of the
Board or the President and Chief Executive Officer.
(b) The Board of Directors, the Chairman of the Board or the President and
Chief Executive Officer may designate one or more Assistant Secretaries who
shall have such of the authority and perform such of the duties of the Secretary
as may be provided in these By-Laws or assigned to them by the Board of
Directors, the Chairman of the Board or the President and Chief Executive
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Officer. During the Secretary's absence or inability, the Secretary's authority
and duties shall be possessed by such Assistant Secretary or Assistant
Secretaries as the Board of Directors, the Chairman of the Board or the
President and Chief Executive Officer may designate.
SECTION 4.07. Removal. Any officer or agent of the Corporation may be
removed by the affirmative vote of a majority of the Board of Directors
whenever, in their judgment, the best interests of the Corporation would be
served thereby. Any officer or agent appointed by the Chairman of the Board or
the President and Chief Executive Officer may be removed by him or her whenever,
in such person's judgment, the best interests of the Corporation would be served
thereby. No elected officer shall have any contractual rights against the
Corporation for compensation by virtue of such election beyond the date of the
election of such person's successor, such person's death, such person's
resignation or such person's removal, whichever event shall first occur, except
as otherwise provided in an employment contract or under an employee benefit
plan.
SECTION 4.08. Vacancies. A newly created elected office and a vacancy in
any elected office because of death, resignation, or removal may be filled by
the Board of Directors for the unexpired portion of the term at any meeting of
the Board of Directors. Any vacancy in an office appointed by the Chairman of
the Board or the President and Chief Executive Officer because of death,
resignation, or removal may be filled by the Chairman of the Board or the
President and Chief Executive Officer.
ARTICLE V
Stock Certificates and Transfers
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SECTION 5.01. Stock Certificates and Transfers. The interest of each
stockholder of the Corporation shall be evidenced by certificates for shares of
stock in such form as the Corporation may from time to time prescribe. The
shares of the stock of the Corporation shall be transferred on the books of the
Corporation by the holder thereof in person or by such person's attorney, upon
surrender for cancellation of certificates for at least the same number of
shares, with an assignment and power of transfer endorsed thereon or attached
thereto, duly executed, with such proof of the authenticity of the signature as
the Corporation or its agents may reasonably require. The certificates of stock
shall be signed, countersigned and registered in such manner as the Board of
Directors may by resolution prescribe or as may otherwise be permitted by
applicable law, which resolution may permit all or any of the signatures on such
certificates to be in facsimile. In case any officer, transfer agent or
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registrar who has signed or whose facsimile signature has been placed upon a
certificate has 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. Notwithstanding the foregoing provisions regarding share certificates,
the Corporation may provide that, subject to the rights of stockholders under
applicable law, some or all of any or all classes or series of the Corporation's
common or any preferred shares may be uncertificated shares.
SECTION 5.02. Lost, Stolen or Destroyed Certificates. No certificate for
shares of stock in the Corporation shall be issued in place of any certificate
alleged to have been lost, destroyed or stolen, except on production of such
evidence of such loss, destruction or theft and on delivery to the Corporation
of a bond or indemnity in such amount, upon such terms and secured by such
surety, as the Board of Directors or any financial officer may in its or such
person's discretion require.
ARTICLE VI
Miscellaneous Provisions
------------------------
SECTION 6.01. Fiscal Year. The fiscal year of the Corporation shall begin
on the first day of January and end on the last day of December of each year.
SECTION 6.02. Dividends. The Board of Directors may from time to time
declare, and the Corporation may pay, dividends on its outstanding shares in
the manner and upon the terms and conditions provided by law and the
Certificate of Incorporation.
SECTION 6.03. Seal. The corporate seal shall have inscribed thereon the
words "Corporate Seal," the year of incorporation and the word "Delaware."
SECTION 6.04. Waiver of Notice. Whenever any notice is required to be
given to any stockholder or Director under the provisions of the DGCL or these
By-Laws, a waiver thereof given in accordance with applicable law shall be
deemed equivalent to the giving of such notice. Neither the business to be
transacted at, nor the purpose of, any annual or special meeting of the
stockholders or the Board of Directors or committee thereof need be specified
in any waiver of notice of such meeting.
SECTION 6.05. Audits. The accounts, books and records of the Corporation
shall be audited upon the conclusion of each fiscal year by an independent
certified public accountant selected by the Board of Directors, and it shall be
the duty of the Board of Directors to cause such audit to be done annually.
SECTION 6.06. Resignations. Any Director or any officer, whether elected or
appointed, may resign at any time by giving written notice of such resignation
to the Chairman of the Board, the President and Chief Executive Officer, or the
Secretary, and such resignation shall be deemed to be effective as of the close
of business on the date said notice is received by the Chairman of the Board,
the President and Chief Executive Officer, or the Secretary, or at such later
time as is specified therein. No formal action shall be required of the Board of
Directors or the stockholders to make any such resignation effective.
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ARTICLE VII
Contracts, Proxies, Etc.
------------------------
SECTION 7.01. Contracts. Except as otherwise required by law, the
Certificate of Incorporation, a Preferred Stock Designation, or these By-Laws,
any contracts or other instruments may be executed and delivered in the name and
on the behalf of the Corporation by such officer or officers of the Corporation
as the Board of Directors may from time to time direct. Such authority may be
general or confined to specific instances as the Board of Directors may
determine. The Chairman of the Board, the President and Chief Executive Officer
or any Senior Vice President, Executive Vice President or Vice President may
execute bonds, contracts, deeds, leases and other instruments to be made or
executed or for or on behalf of the Corporation. Subject to any restrictions
imposed by the Board of Directors or the Chairman of the Board, the President
and Chief Executive Officer or any Senior Vice President, Executive Vice
President or Vice President of the Corporation may delegate contractual powers
to others under such person's jurisdiction, it being understood, however, that
any such delegation of power shall not relieve such officer of responsibility
with respect to the exercise of such delegated power.
SECTION 7.02. Proxies. Unless otherwise provided by resolution adopted by
the Board of Directors, the Chairman of the Board, the President and Chief
Executive Officer or any Senior Vice President, Executive Vice President or Vice
President may from time to time appoint an attorney or attorneys or agent or
agents of the Corporation, in the name and on behalf of the Corporation, to cast
the votes which the Corporation may be entitled to cast as the holders of stock
or other securities in any other entity, any of whose stock or other securities
may be held by the Corporation, at meetings of the holders of the stock or other
securities of such other entity, or to consent in accordance with applicable
law, in the name of the Corporation as such holder, to any action by such other
entity, and may instruct the person or persons so appointed as to the manner of
casting such votes or giving such consent, and may execute or cause to be
executed in the name and on behalf of the Corporation and under its corporate
seal or otherwise, all such proxies, consents or other instruments as such
person may deem necessary or proper in the premises.
ARTICLE VIII
Amendments
----------
SECTION 8.01. Amendments. The By-Laws may be altered or repealed and new
By-Laws may be adopted (a) at any annual or special meeting of stockholders by
the affirmative vote of the holders of a majority of the voting power of the
Voting Stock then outstanding, voting as a single class, provided, however, that
any proposed alteration or repeal of, or the adoption of any By-Law inconsistent
with, Section 2.02, Section 2.07 or this Section 8.01, by the stockholders shall
require the affirmative vote of the holders of at least 80% of the voting power
of all Voting Stock then outstanding, voting together as a single class, and
provided, further, however, that, in the case of any such stockholder action at
a special meeting of stockholders, notice of the proposed alteration, repeal or
adoption of the new By-Law or By-Laws must be contained in the notice of such
special meeting, or (b) by the affirmative vote of a majority of the Whole
Board.