Exhibit 3.1
BYLAWS
OF
FIRST NIAGARA FINANCIAL GROUP, INC
ARTICLE I - STOCKHOLDERS
Section 1. Annual Meeting. An annual meeting of the stockholders, for the
election of Directors to succeed those whose terms expire and for the
transaction of such other business as may properly come before the meeting,
shall be held at such place, on such date, and at such time as the Board of
Directors shall each year fix, which date shall be within thirteen (13) months
subsequent to the later of the date of incorporation or the last annual meeting
of stockholders.
Section 2. Special Meetings. Subject to the rights of the holders of any
class or series of preferred stock of the Corporation, special meetings of
stockholders of the Corporation may be called by the Board of Directors pursuant
to a resolution adopted by a majority of the total number of Directors which the
Corporation would have if there were no vacancies on the Board of Directors
(hereinafter the "Whole Board").
Section 3. Notice of Meetings. Written notice of the place, date, and time
of all meetings of the stockholders shall be given, not less than ten (10) nor
more than sixty (60) days before the date on which the meeting is to be held, to
each stockholder entitled to vote at such meeting, except as otherwise provided
herein or required by law (meaning, here and hereinafter, as required from time
to time by the Delaware General Corporation Law or the Certificate of
Incorporation of the Corporation).
When a meeting is adjourned to another place, date or time, written notice
need not be given of the adjourned meeting if the place, date and time thereof
are announced at the meeting at which the adjournment is taken; provided,
however, that if the date of any adjourned meeting is more than thirty (30) days
after the date for which the meeting was originally noticed, or if a new record
date is fixed for the adjourned meeting, written notice of the place, date, and
time of the adjourned meeting shall be given in conformity herewith. At any
adjourned meeting, any business may be transacted which might have been
transacted at the original meeting.
Section 4. Quorum. At any meeting of the stockholders, the holders of a
majority of all of the shares of the stock entitled to vote at the meeting,
present in person or by proxy (after giving effect to the Article 4 of the
Corporation's Certificate of Incorporation), shall constitute a quorum for all
purposes, unless or except to the extent that the presence of a larger number
may be required by law. Where a separate vote by a class or classes is required,
a majority of the shares of such class or classes present in person or
represented by proxy shall constitute a quorum entitled to take action with
respect to that vote on that matter.
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If a quorum shall fail to attend any meeting, the chairman of the meeting
or the holders of a majority of the shares of stock entitled to vote who are
present, in person or by proxy, may adjourn the meeting to another place, date,
or time.
If a notice of any adjourned special meeting of stockholders is sent to all
stockholders entitled to vote thereat, stating that it will be held with those
present constituting a quorum, then except as otherwise required by law, those
present at such adjourned meeting shall constitute a quorum, and all matters
shall be determined by a majority of the votes cast at such meeting.
Section 5. Organization. Such person as the Board of Directors may have
designated or, in the absence of such a person, the Chairman of the Board of the
Corporation or, in his or her absence, the Chief Executive Officer or, in his or
her absence, such person as may be chosen by the holders of a majority of the
shares entitled to vote who are present, in person or by proxy, shall call to
order any meeting of the stockholders and act as chairman of the meeting. In the
absence of the Secretary of the Corporation, the secretary of the meeting shall
be such person as the chairman appoints.
Section 6. Conduct of Business. (a) The chairman of any meeting of
stockholders shall determine the order of business and the procedure at the
meeting, including such regulation of the manner of voting and the conduct of
discussion as seem to him or her in order. The date and time of the opening and
closing of the polls for each matter upon which the stockholders will vote at
the meeting shall be announced at the meeting.
(b) At any annual meeting of the stockholders, only such business
shall be conducted as shall have been brought before the meeting: (i) by or
at the direction of the Board of Directors; or (ii) by any stockholder of
the Corporation who is entitled to vote with respect thereto and who
complies with the notice procedures set forth in this Section 6(b). For
business to be properly brought before an annual meeting by a stockholder,
the business must relate to a proper subject matter for stockholder action
and the stockholder must have given timely notice thereof in writing to the
Secretary of the Corporation. To be timely, a stockholder's notice must be
delivered or mailed to and received at the principal office of the
Corporation not less than ninety (90) days prior to the date of the annual
meeting; provided, however, that in the event that less than one hundred
(100) days' notice or prior public disclosure of the date of the meeting is
given or made to stockholders, notice by the stockholder to be timely must
be received not later than the close of business on the 10th day following
the day on which such notice of the date of the annual meeting was mailed
or such public disclosure was made. A stockholder's notice to the Secretary
shall set forth as to each matter such stockholder proposes to bring before
the annual meeting: (i) a brief description of the business desired to be
brought before the annual meeting and the reasons for conducting such
business at the annual meeting; (ii) the name and address, as they appear
on the Corporation's books, of the stockholder proposing such business;
(iii) the class and number of shares of the Corporation's capital stock
that are beneficially owned by such stockholder; and (iv) any material
interest of such stockholder in such business. Notwithstanding anything in
these Bylaws to the contrary, no business shall be brought before or
conducted at an annual meeting except in accordance with the provisions of
this Section 6(b). The Officer of the Corporation or other person presiding
over the annual meeting shall, if the facts so warrant, determine and
declare to the meeting that business was not properly brought before the
meeting
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in accordance with the provisions of this Section 6(b) and, if he or she should
so determine, he or she shall so declare to the meeting and any such business so
determined to be not properly brought before the meeting shall not be
transacted.
At any special meeting of the stockholders, only such business shall be
conducted as shall have been brought before the meeting by or at the direction
of the Board of Directors.
(c) Only persons who are nominated in accordance with the procedures
set forth in these Bylaws shall be eligible for election as Directors.
Nominations of persons for election to the Board of Directors of the
Corporation may be made at a meeting of stockholders at which Directors are
to be elected only: (i) by or at the direction of the Board of Directors
or; (ii) by any stockholder of the Corporation entitled to vote for the
election of Directors at the meeting who complies with the notice
procedures set forth in this Section 6(c). Such nominations, other than
those made by or at the direction of the Board of Directors, shall be made
by timely notice in writing to the Secretary of the Corporation. To be
timely, a stockholder's notice shall be delivered or mailed to and received
at the principal office of the Corporation not less than ninety (90) days
prior to the date of the meeting; provided, however, that in the event that
less than one hundred (100) days' notice or prior disclosure of the date of
the meeting is given or made to stockholders, notice by the stockholder to
be timely must be so received not later than the close of business on the
10th day following the day on which such notice of the date of the meeting
was mailed or such public disclosure was made. Such stockholder's notice
shall set forth: (i) as to each person whom such stockholder proposes to
nominate for election or re-election as a Director, all information
relating to such person that is required to be disclosed in solicitations
of proxies for the election of Directors, or is otherwise required, in each
case pursuant to Regulation 14A under the Securities Exchange Act of 1934
(including such person's written consent to being named in the proxy
statement as a nominee and to serving as a Director if elected); and (ii)
as to the stockholder giving notice of nomination (x) the name and address,
as they appear on the Corporation's books, of such stockholder and (y) the
class and number of shares of the Corporation's capital stock that are
beneficially owned by such stockholder. At the request of the Board of
Directors any person nominated by the Board of Directors for election as a
Director shall furnish to the Secretary of the Corporation that information
required to be set forth in a stockholder's notice of nomination which
pertains to the nominee. No person shall be eligible for election as a
Director of the Corporation unless nominated in accordance with the
provisions of this Section 6(c). The Officer of the Corporation or other
person presiding at the meeting shall, if the facts so warrant, determine
that a nomination was not made in accordance with such provisions and, if
he or she should so determine, he or she shall declare to the meeting and
the defective nomination shall be disregarded.
Section 7. Proxies and Voting. At any meeting of the stockholders, every
stockholder entitled to vote may vote in person or by proxy authorized by an
instrument in writing or by a transmission permitted by law filed in accordance
with the procedure established for the meeting. Any copy, facsimile
telecommunication or other reliable reproduction of the writing or transmission
created pursuant to this paragraph may be substituted or used in lieu of the
original writing or transmission for any and all purposes for which the original
writing or transmission could be used, provided that such copy, facsimile
telecommunication or other reproduction shall be a complete reproduction of the
entire original writing or transmission.
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All voting, including on the election of Directors but excepting where
otherwise required by law or by the governing documents of the Corporation, may
be by a voice vote; provided, however, that upon demand therefor by a
stockholder entitled to vote or by his or her proxy, a stock vote shall be
taken. Every stock vote shall be taken by ballots, each of which shall state the
name of the stockholder or proxy voting and such other information as may be
required under the procedure established for the meeting. The Corporation shall,
in advance of any meeting of stockholders, appoint one or more inspectors to act
at the meeting and make a written report thereof. The Corporation may designate
one or more persons as alternate inspectors to replace any inspector who fails
to act. If no inspector or alternate is able to act at a meeting of
stockholders, the person presiding at the meeting shall appoint one or more
inspectors to act at the meeting. Each inspector, before entering upon the
discharge of his or her duties, shall take and sign an oath faithfully to
execute the duties of inspector with strict impartiality and according to the
best of his or her ability.
All elections shall be determined by a plurality of the votes cast, and
except as otherwise required by the Certificate of Incorporation or by law, all
other matters shall be determined by a majority of the votes present and cast at
a properly called meeting of stockholders.
Section 8. Stock List. A complete list of stockholders entitled to vote at
any meeting of stockholders, arranged in alphabetical order for each class of
stock and showing the address of each such stockholder and the number of shares
registered in his or her name, shall be open to the examination of any such
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 stock list shall also be kept at the place of the meeting during the
whole time thereof and shall be open to the examination of any such stockholder
who is present. This list shall presumptively determine the identity of the
stockholders entitled to vote at the meeting and the number of shares held by
each of them.
Section 9. Consent of Stockholders in Lieu of Meeting. Subject to the
rights of the holders of any class or series of preferred stock of the
Corporation, any action required or permitted to be taken by the stockholders of
the Corporation must be effected at an annual or special meeting of stockholders
of the Corporation and may not be effected by any consent in writing by such
stockholders.
ARTICLE II - BOARD OF DIRECTORS
Section 1. General Powers, Number and Term of Office. The business and
affairs of the Corporation shall be under the direction of its Board of
Directors. The number of Directors who shall constitute the Whole Board shall be
such number as the Board of Directors shall from time-to-time by resolution so
designate. The Board of Directors shall annually elect a Chairman
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of the Board from among its members who shall, when present, preside at its
meetings. At its option, the Board may also annually elect a Vice Chairman of
the Board from among its members, who shall have such authorities and
responsibilities as determined by the Board.
The Directors, other than those who may be elected by the holders of any
class or series of Preferred Stock, shall be divided, with respect to the time
for which they severally hold office, into three classes, with the term of
office of the first class to expire at the first annual meeting of stockholders,
the term of office of the second class to expire at the annual meeting of
stockholders one year thereafter and the term of office of the third class to
expire at the annual meeting of stockholders two years thereafter, with each
Director to hold office until his or her successor shall have been duly elected
and qualified. At each annual meeting of stockholders, commencing with the first
annual meeting, Directors elected to succeed those Directors whose terms then
expire shall be elected for a term of office to expire at the third succeeding
annual meeting of stockholders after their election, with each Director to hold
office until his or her successor shall have been duly elected and qualified.
Section 2. Chairman of the Board. The Chairman of the Board shall, subject
to the provisions of these Bylaws and to the direction of the Board of
Directors, serve in a general executive capacity and, when present, shall
preside at all meetings of the Board of Directors or the stockholders of the
Corporation. The Chairman of the Board shall perform all duties and have all
powers which are commonly incident to the office of Chairman of the Board or
which are delegated to him or her by the Board of Directors. He or she shall
have power to sign all stock certificates, contracts and other instruments of
the Corporation that authorized. In these Bylaws, the term "Inside Chairman" is
defined as a Chairman of the Board who also serves as a salaried officer of the
Company or one of its affiliates. The term "Outside Chairman" is defined as a
Chairman of the Board who does not serve as a salaried officer of the Company or
one of its affiliates. If the Chairman of the Board is an Inside Chairman, he or
she shall be a voting ex-officio member of all committees of the Board of
Directors except the Audit, Governance/Nominating and Compensation committees.
If the Chairman of the Board is an Outside Chairman, he or she shall be a voting
ex-officio member of all committees of the Board of Directors.
Section 3. Chairman of the Executive Committee. At its annual meeting, the
Board of Directors shall elect from among its members a Chairman of the
Executive Committee, except that an Inside Chairman may not serve as Chairman of
the Executive Committee. If the Chairman of the Board is an Inside Chairman, the
Chairman of the Executive Committee shall serve as chairman during Executive
Sessions of the Board, sit ex-officio on all committees of the Board, provide
leadership to outside Board members, and carry out other duties as requested by
the Board in its governance.
Section 4. Vacancies and Newly Created Directorships. Subject to the rights
of the holders of any class or series of preferred stock, and unless the Board
of Directors otherwise determines, newly created Directorships resulting from
any increase in the authorized number of Directors or any vacancies in the Board
of Directors resulting from death, resignation, retirement, disqualification,
removal from office or other cause may be filled only by a majority vote of the
Directors then in office, though less than a quorum, and Directors so chosen
shall
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hold office for a term expiring at the annual meeting of stockholders at which
the term of office of the class to which they have been elected expires and
until such Director's successor shall have been duly elected and qualified. No
decrease in the number of authorized Directors constituting the Board shall
shorten the term of any incumbent Director.
Section 5. Regular Meetings. Each regular meetings of the Board of
Directors shall be held at such place, on such date, and at such time as shall
have been established by the Board of Directors and publicized among all
Directors. A notice of each regular meeting shall not be required.
Section 6. Special Meetings. Special meetings of the Board of Directors may
be called by one-third of the Directors then in office (rounded up to the
nearest whole number) or by the Chairman of the Board or the Chairman of the
Executive Committee and shall be held at such place, on such date, and at such
time as they or he or she shall fix. Notice of the place, date, and time of each
such special meeting shall be given to each Director by whom it is not waived by
mailing written notice not less than five (5) days before the meeting or by
facsimile transmission of the same not less than twenty-four (24) hours before
the meeting. Unless otherwise indicated in the notice thereof, any and all
business may be transacted at a special meeting.
Section 7. Quorum. At any meeting of the Board of Directors, a majority of
the Whole Board shall constitute a quorum for all purposes. If a quorum shall
fail to attend any meeting, a majority of those present may adjourn the meeting
to another place, date, or time, without further notice or waiver thereof.
Section 8. Participation in Meetings By Conference Telephone. Members of
the Board of Directors, or of any committee thereof, may participate in a
meeting of such Board or committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other and such participation shall constitute presence in
person at such meeting.
Section 9. Conduct of Business. At any meeting of the Board of Directors,
business shall be transacted in such order and manner as the Board may from time
to time determine, and all matters shall be determined by the vote of a majority
of the Directors present, except as otherwise provided herein or required by
law. Action may be taken by the Board of Directors without a meeting if all
members thereof consent thereto in writing, and the writing or writings are
filed with the minutes of proceedings of the Board of Directors.
Section 10. Powers. The Board of Directors may, except as otherwise
required by law, exercise all such powers and do all such acts and things as may
be exercised or done by the Corporation, including, without limiting the
generality of the foregoing, the unqualified power:
(1) To declare dividends from time to time in accordance with law;
(2) To purchase or otherwise acquire any property, rights or privileges on
such terms as it shall determine;
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(3) To authorize the creation, making and issuance, in such form as it may
determine, of written obligations of every kind, negotiable or
non-negotiable, secured or unsecured, and to do all things necessary
in connection therewith;
(4) To remove any Officer of the Corporation with or without cause, and
from time-to- time to devolve the powers and duties of any Officer
upon any other person;
(5) To confer upon any Officer of the Corporation the power to appoint,
remove and suspend subordinate Officers, employees and agents;
(6) To adopt from time-to-time such stock, option, stock purchase, bonus
or other compensation plans for Directors, Officers, employees and
agents of the Corporation and its subsidiaries as it may determine;
(7) To adopt from time-to-time such insurance, retirement, and other
benefit plans for Directors, Officers, employees and agents of the
Corporation and its subsidiaries as it may determine; and
(8) To adopt from time-to-time regulations, not inconsistent with these
Bylaws, for the management of the Corporation's business and affairs.
Section 11. Compensation of Directors. Directors, as such, may receive,
pursuant to resolution of the Board of Directors, fixed fees and other
compensation for their services as Directors, including, without limitation,
their services as members of committees of the Board of Directors.
Section 12. Directors' Age Limitation and Directors Emeriti. Unless
otherwise approved by a 2/3 vote of the Board of Directors, no person shall be
eligible for initial election as a Director who is sixty-five (65) years of age
or more. The office of a director shall become vacant on the last day of the
month in which such director reaches his or her seventieth (70th) birthday.
ARTICLE III - COMMITTEES
Section 1. Committee of the Board of Directors. The Board of Directors, by
a vote of a majority of the Whole Board, may from time-to-time designate
committees of the Board, including those committees described in these bylaws,
with such lawfully delegable powers and duties as it thereby confers, to serve
at the pleasure of the Board and shall, for those committees and any others
provided for herein, elect a Director or Directors to serve as the member or
members, designating, if it desires, other Directors as alternate members who
may replace any absent or disqualified member at any meeting of the committee.
Any committee so designated may exercise the power and authority of the Board of
Directors to declare a dividend, to authorize the issuance of stock or to adopt
a certificate of ownership and merger pursuant to the Delaware General
Corporation Law if the resolution which designates the committee or a
supplemental resolution of the Board of Directors shall so provide. In the
absence or disqualification of any member of any committee and any alternate
member in his or her place,
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the member or members of the committee present at the meeting and not
disqualified from voting, whether or not he or she or they constitute a quorum,
may by unanimous vote appoint another member of the Board of Directors to act at
the meeting in the place of the absent or disqualified member.
Section 2. Conduct of Business. Each committee may determine the procedural
rules for meeting and conducting its business and shall act in accordance
therewith, except as otherwise provided herein or required by law. Adequate
provision shall be made for notice to members of all meetings; one-third (a) of
the members shall constitute a quorum unless the committee shall consist of one
(1) or two (2) members, in which event one (1) member shall constitute a quorum;
and all matters shall be determined by a majority vote of the members present.
Action may be taken by any committee without a meeting if all members thereof
consent thereto in writing, and the writing or writings are filed with the
minutes of the proceedings of such committee.
Section 3. The Executive Committee. Executive Committee shall consist of at
least five Directors and shall include the Chairman of the Board, the President
and additional Directors elected annually by vote of a majority of the Whole
Board.
If any member of the Executive Committee shall be absent from any meeting
of the committee, the Chairman of the Executive Committee may designate some
other Director, other than one serving as a salaried officer, to act as a member
of the committee at that meeting. In the event that there shall be a vacancy in
the office of Chairman of the Board, then and in that event, such other
additional Director or Directors as may be needed to obtain the full complement
of five members shall be elected by the Board of Directors to serve until the
vacancy is filled, or until the next annual meeting of the Board of Directors.
Any member of the Executive Committee may be removed at any time, with or
without cause, by resolution adopted by a majority of the Whole Board of
Directors.
Regular meetings of the Executive Committee may be held without notice at
such times and places as the Executive Committee may fix from time to time by
resolution. Special meetings of the committee may be called by the Chairman of
the Executive Committee, or at any time by any two members of the committee,
upon twenty-four (24) hours' notice by mail, in person, or by facsimile or
telephone. The Executive Committee shall meet at least once in each thirty (30)
day period in which the Board of Directors does not meet. The notice of a
special meeting of the committee, however given, shall state the time and place,
where the meeting is to be held and the business which is to be presented, and
no business other than that stated in the notice shall be transacted at said
meeting. The Executive Committee may make rules for the regulation of its
meetings and proceedings not inconsistent with these Bylaws.
At least four members of the Executive Committee, including designees
designated to act for an absent member or members of the committee, shall be
necessary for a quorum at any meeting of the committee. Attendance by Alternate
Directors shall constitute membership on the Executive Committee for determining
quorum requirements. Action of the Executive Committee must be authorized by the
affirmative vote of a majority of the members present at a meeting at which a
quorum is present. Any action required or permitted to be taken by the Executive
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Committee at a meeting may be taken without a meeting if a consent in writing,
setting forth the action so taken, shall be signed by all of the members of the
Executive Committee.
Except as otherwise provided herein, the Executive Committee, when the
Board of Directors is not in session, shall have and may exercise all of the
authority of the Board of Directors, except to the extent, if any, that such
authority may be limited by resolution adopted by a majority of the Whole Board
of Directors or by applicable law.
Section 4. The Governance/Nominating Committee. The Governance/Nominating
Committee shall consist of not less than three (3) members of the Board of
Directors, all of whom shall be Independent Directors and one of whom shall be
the Chairman of the Board. The Committee members shall be elected at the annual
meeting of the Board of Directors, or in the case of the filling of a vacancy
(such vacancy, in every case to be filled by an existing Independent Director)
at any regular or special meeting of the Board of Directors. The
Governance/Nominating Committee shall have authority to establish guidelines for
Board composition, research and present to the Board qualified candidates for
election to the Board, review expiring terms of Board members and make
appropriate recommendations for re-election, evaluate the effectiveness of the
Board, Board committees and Board meetings, and periodically review the Board's
governance guidelines.
Section 5. The Audit Committee. The Audit Committee shall consist of four
or more Directors, all of whom shall be Independent Directors of the Company or
its affiliates, who shall be elected to the Audit Committee at the annual
meeting of the Board of Directors, or in the case of the filling of a vacancy
(such vacancy, in every case to be filled by an existing Independent Director)
at any regular or special meeting of the Board of Directors. The Audit Committee
shall assist the Board of Directors in fulfilling its obligation to oversee the
appropriateness of accounting policies and the Company's procedures and
controls. In performing its functions, the Audit Committee shall utilize the
expertise of the Company's Internal Audit Department under the direction of the
Internal Auditor. The Audit Committee shall hold formal meetings with the
Internal Auditor on a quarterly basis.
Section 6. The Compensation Committee. The Compensation Committee shall
consist of three or more Directors, all of whom shall be Independent Directors
of the Company or its affiliates, who shall be elected to the Compensation
Committee at the annual meeting of the Board of Directors, or in the case of the
filling of a vacancy (such vacancy in every case to be filled by an existing
Independent Director) at any regular or special meeting of the Board of
Directors. The Compensation Committee shall meet as needed and shall review,
administer and approve Director and executive compensation programs, benefits
and other related matters.
Section 7. Miscellaneous. For purposes of Article III of these Bylaws, the
term "Independent Director" shall mean a director who is determined by the Board
of Directors to be independent under the Nasdaq corporate governance listing
standards and the Company's Governance Guidelines. In addition to the foregoing,
for purposes of service on the Audit Committee, the term "Independent Director"
shall also encompass the standard of independence set forth in Securities and
Exchange Commission Rule 10A-3.
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ARTICLE IV - OFFICERS
Section 1. Generally. (a) The Board of Directors as soon as may be
practicable after the annual meeting of stockholders, shall choose a President
and Chief Executive Officer, one or more Vice Presidents, and a Secretary and
from time to time may choose such other Officers as it may deem proper. Any
number of offices may be held by the same person.
(b) The term of office of all Officers shall be until the next
annual election of Officers and until their respective successors are chosen,
but any Officer may be removed from office at any time by the affirmative vote
of a majority of the authorized number of Directors then constituting the Board
of Directors.
(c) All Officers chosen 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.
Section 2. President and Chief Executive Officer. The President and Chief
Executive Officer (the "President") shall have general responsibility for the
management and control of the business and affairs of the Corporation and shall
perform all duties and have all powers which are commonly incident to the
offices of President and Chief Executive Officer or which are delegated to him
or her by the Board of Directors. Subject to the direction of the Board of
Directors, the President shall have power to sign all stock certificates,
contracts and other instruments of the Corporation which are authorized and
shall have general supervision of all of the other Officers, employees and
agents of the Corporation.
Section 3. Vice President. The Vice President or Vice Presidents shall
perform the duties of the President in his or her absence or during his
disability to act. In addition, the Vice Presidents shall perform the duties and
exercise the powers usually incident to their respective offices and/or such
other duties and powers as may be properly assigned to them by the Board of
Directors, the Chairman of the Board or the President. A Vice President or Vice
Presidents may be designated as Executive Vice President or Senior Vice
President.
Section 4. Secretary. The Secretary or an Assistant Secretary shall issue
notices of meetings, shall keep their minutes, shall have charge of the seal and
the corporate books, shall perform such other duties and exercise such other
powers as are usually incident to such offices and/or such other duties and
powers as are properly assigned thereto by the Board of Directors, the Chairman
of the Board or the President. At its option, the Board of Directors may appoint
a Secretary of the Board, who may be a person other than the Secretary and who
may or may not be an officer of the Corporation. If so appointed, the Secretary
of the Board shall issue notices of all meetings of the Board and all committees
of the Board where notices of such meetings are required by applicable law or
these Bylaws; attend all meetings of the Board in place of the Secretary;
record, prepare and maintain the minutes of all Board meetings; and perform such
other duties as the Board shall prescribe.
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Section 5. Assistant Secretaries and Other Officers. The Board of Directors
may appoint one or more Assistant Secretaries and such other Officers who shall
have such powers and shall perform such duties as are provided in these Bylaws
or as may be assigned to them by the Board of Directors, the Chairman of the
Board or the President.
Section 6. Action with Respect to Securities of Other Corporations. Unless
otherwise directed by the Board of Directors, the President or any Officer of
the Corporation authorized by the President shall have power to vote and
otherwise act on behalf of the Corporation, in person or by proxy, at any
meeting of stockholders of or with respect to, any action of stockholders of any
other corporation in which the Corporation may hold securities and otherwise to
exercise any and all rights and powers which the Corporation may possess by
reason of its ownership of securities in such other corporation.
ARTICLE V - STOCK
Section 1. Certificates of Stock. Each stockholder shall be entitled to a
certificate signed by, or in the name of the Corporation by, the Chairman of the
Board or the President, and by the Secretary or an Assistant Secretary, or any
Treasurer or Assistant Treasurer, certifying the number of shares owned by him
or her. Any or all of the signatures on the certificate may be by facsimile.
Section 2. Transfers of Stock Transfers of stock shall be made only upon
the transfer books of the Corporation kept at an office of the Corporation or by
transfer agents designated to transfer shares of the stock of the Corporation.
Except where a certificate is issued in accordance with Section 4 of Article V
of these Bylaws, an outstanding certificate for the number of shares involved
shall be surrendered for cancellation before a new certificate is issued
therefor.
Section 3. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders, or
to receive payment of any dividend or other distribution or allotment of any
rights or 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 a record date, which record date shall not precede the date on
which the resolution fixing the record date is adopted and which record date
shall not be more than sixty (60) nor less than ten (10) days before the date of
any meeting of stockholders, nor more than sixty (60) days prior to the time for
such other action as hereinbefore described; provided, however, that 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 day next preceding the day on which notice is
given or, if notice is waived, at the close of business on the day next
preceding the day on which the meeting is held, and, for determining
stockholders entitled to receive payment of any dividend or other distribution
or allotment of rights or to exercise any rights of change, conversion or
exchange of stock or for any other purpose, the record date shall be at the
close of business on the day on which the Board of Directors adopts a resolution
relating thereto.
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A determination of stockholders of record entitled to notice of or to vote
at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
Section 4. Lost, Stolen or Destroyed Certificates. In the event of the
loss, theft or destruction of any certificate of stock, another may be issued in
its place pursuant to such regulations as the Board of Directors may establish
concerning proof of such loss, theft or destruction and concerning the giving of
a satisfactory bond or bonds of indemnity.
Section 5. Regulations. The issue, transfer, conversion and registration of
certificates of stock shall be governed by such other regulations as the Board
of Directors may establish.
ARTICLE VI - NOTICES
Section 1. Notices. Except as otherwise specifically provided herein or
required by law, all notices required to be given to any stockholder, Director,
Officer, employee or agent shall be in writing and may in every instance be
effectively given by hand delivery to the recipient thereof, by depositing such
notice in the U.S. mails, postage prepaid, or by sending such notice by
facsimile transmission or by courier. Any such notice shall be addressed to such
stockholder, Director, Officer, employee or agent at his or her last known
address as the same appears on the books of the Corporation. The time when such
notice is received, if hand delivered, or dispatched, if delivered through the
mails or by facsimile transmission or other courier, shall be the time of the
giving of the notice.
Section 2. Waivers. A written waiver of any notice, signed by a
stockholder, Director, Officer, employee or agent, whether before or after the
time of the event for which notice is to be given, shall be deemed equivalent to
the notice required to be given to such stockholder, Director, Officer, employee
or agent. Neither the business nor the purpose of any meeting need be specified
in such a waiver.
ARTICLE VII - MISCELLANEOUS
Section 1. Facsimile Signatures. In addition to the provisions for use of
facsimile signatures elsewhere specifically authorized in these Bylaws,
facsimile signatures of any Officer or Officers of the Corporation may be used
whenever and as authorized by the Board of Directors or a committee thereof.
Section 2. Corporate Seal. The Board of Directors may provide a suitable
seal, containing the name of the Corporation, which seal shall be in the charge
of the Secretary. If and when so directed by the Board of Directors or a
committee thereof, duplicates of the seal may be kept and used by the Chief
Financial Officer or by an Assistant Secretary or an assistant to the Chief
Financial Officer.
Section 3. Reliance upon Books, Reports and Records Each Director, each
member of any committee designated by the Board of Directors, and each Officer
of the Corporation shall, in the performance of his or her duties, be fully
protected in relying in good faith upon the
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books of account or other records of the Corporation and upon such information,
opinions, reports or statements presented to the Corporation by any of its
Officers or employees, or committees of the Board of Directors so designated, or
by any other person as to matters which such Director or committee member
reasonably believes are within such other person's professional or expert
competence and who has been selected with reasonable care by or on behalf of the
Corporation.
Section 4. Fiscal Year. The fiscal year of the Corporation shall be as
fixed by the Board of Directors.
Section 5. Time Periods. In applying any provision of these Bylaws which
requires that an act be done or not be done a specified number of days prior to
an event or that an act be done during a period of a specified number of days
prior to an event, calendar days shall be used, the day of the doing of the act
shall be excluded, and the day of the event shall be included.
ARTICLE VIII - AMENDMENT
The Board of Directors may amend, alter or repeal these Bylaws at any
meeting of the Board, provided notice of the proposed change is given not less
than two days prior to the meeting. The stockholders shall also have power to
amend, alter or repeal these Bylaws at any meeting of stockholders, provided
notice of the proposed change was given in the Notice of the Meeting; provided,
however, that, notwithstanding any other provisions of these Bylaws or any
provision of law which might otherwise permit a lesser vote or no vote, but in
addition to any affirmative vote of the holders of any particular class or
series of the Voting Stock Designation or these Bylaws, the affirmative votes of
the holders of at least 80% of the voting power of all the then-outstanding
shares of the Voting Stock, voting together as a single class, shall be required
to alter, amend or repeal any provisions of these Bylaws.
Revised: September 16, 2004
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