Exhibit 3.2
AMENDED AND RESTATED
BY-LAWS
OF
CONSECO, INC.
A Delaware Corporation
(Adopted as of April 28, 2009)
ARTICLE I
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OFFICES
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Section 1. Registered Office. The registered office of Conseco, Inc.
(the "Corporation") in the State of Delaware shall be located at 1209 Orange
Street, Wilmington, DE 19801. The name of the Corporation's registered agent at
such address shall be CT Corporation. The registered office and/or registered
agent of the Corporation may be changed from time to time by action of the Board
of Directors.
Section 2. Other Offices. The Corporation may also have offices at
such other places, both within and without the State of Delaware, as the Board
of Directors may from time to time determine or the business of the Corporation
may require.
ARTICLE II
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MEETINGS OF STOCKHOLDERS
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Section 1. Annual Meeting. An annual meeting of the stockholders shall
be held each year within 180 days after the close of the immediately preceding
fiscal year of the Corporation or at such other time specified by the Board of
Directors for the purpose of electing Directors and conducting such other proper
business as may come before the annual meeting; provided, however, that the
first and the second annual meeting after September 10, 2003 shall not be held
earlier than on August 10, 2004 and August 10, 2005, respectively. At the annual
meeting, stockholders shall elect Directors and transact such other business as
properly may be brought before the annual meeting pursuant to Section 11 of
ARTICLE II hereof.
Section 2. Special Meetings. Special meetings of the stockholders may
only be called in the manner provided in the Corporation's certificate of
incorporation, as amended from time to time (the "Certificate of
Incorporation").
Section 3. Place of Meetings. The Board of Directors may designate any
place, either within or without the State of Delaware, as the place of meeting
for any annual meeting or for any special meeting. If no designation is made, or
if a special meeting be otherwise called, the place of meeting shall be the
principal executive office of the Corporation. If for any reason
any annual meeting shall not be held during any year, the business thereof may
be transacted at any special meeting of the stockholders.
Section 4. Notice. Whenever stockholders are required or permitted to
take action at a meeting, written or printed notice stating the place, date,
time and, in the case of special meetings, the purpose or purposes, of such
meeting, shall be given to each stockholder entitled to vote at such meeting not
less than 10 nor more than 60 days before the date of the meeting. All such
notices shall be delivered, either personally or by mail, by or at the direction
of the Board of Directors, the chairman of the board, the chief executive
officer or the secretary, and if mailed, such notice shall be deemed to be
delivered when deposited in the United States mail, postage prepaid, addressed
to the stockholder at his, her or its address as the same appears on the records
of the Corporation. Attendance of a person at a meeting shall constitute a
waiver of notice of such meeting, except when the person attends 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 5. Stockholders List. The officer having charge of the stock
ledger of the Corporation shall make, at least 10 days before every meeting of
the stockholders, a complete list of the stockholders entitled to vote at such
meeting arranged in alphabetical order, 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 for a period of at least 10 days prior to the meeting, (i) on a
reasonably accessible electronic network, provided that the information required
to gain access to such list shall be provided with the notice of the meeting or
(ii) during ordinary business hours, at the principal place of business of the
Corporation. The list shall also be produced and kept at the time and place of
the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
Section 6. Quorum. The holders of a majority of the outstanding shares
of capital stock entitled to vote, present in person or represented by proxy,
shall constitute a quorum at all meetings of the stockholders, except as
otherwise provided by the General Corporation Law of the State of Delaware or by
the Certificate of Incorporation. If a quorum is not present, the holders of a
majority of the shares present in person or represented by proxy at the meeting,
and entitled to vote at the meeting, may adjourn the meeting to another time
and/or place. When a specified item of business requires a vote by a class or
series (if the Corporation shall then have outstanding shares of more than one
class or series) voting as a class or series, the holders of a majority of the
shares of such class or series shall constitute a quorum (as to such class or
series) for the transaction of such item of business.
Section 7. Adjourned Meetings. When a meeting is adjourned to another
time and place, 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 Corporation may transact any business which
might have been transacted at the original meeting. If the adjournment is for
more than 30 days, or if after the adjournment a new record date is fixed for
the adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
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Section 8. Vote Required. When a quorum is present, the affirmative
vote of the majority of shares present in person or represented by proxy at the
meeting and entitled to vote on the subject matter shall be the act of the
stockholders, unless (i) by express provisions of an applicable law or of the
Certificate of Incorporation a different vote is required, in which case such
express provision shall govern and control the decision of such question, or
(ii) the subject matter is the election of Directors, in which case Section 2 of
ARTICLE III hereof shall govern and control the approval of such subject matter.
Section 9. Voting Rights. Except as otherwise provided by the General
Corporation Law of the State of Delaware, the Certificate of Incorporation or
these By-laws, every stockholder shall at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of capital stock held
by such stockholder.
Section 10. 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 or her
by proxy, but no such proxy shall be voted or acted upon after three years from
its date, unless the proxy provides for a longer period. A duly executed proxy
shall be irrevocable if it states that it is irrevocable and if, and only as
long as, it is coupled with an interest sufficient in law to support an
irrevocable power. A proxy may be made irrevocable regardless of whether the
interest with which it is coupled is an interest in the stock itself or an
interest in the Corporation generally. Any proxy is suspended when the person
executing the proxy is present at a meeting of stockholders and elects to vote,
except that when such proxy is coupled with an interest and the fact of the
interest appears on the face of the proxy, the agent named in the proxy shall
have all voting and other rights referred to in the proxy, notwithstanding the
presence of the person executing the proxy. At each meeting of the stockholders,
and before any voting commences, all proxies filed at or before the meeting
shall be submitted to and examined by the secretary or a person designated by
the secretary, and no shares may be represented or voted under a proxy that has
been found to be invalid or irregular.
Section 11. Business Brought Before an Annual Meeting. At an annual
meeting of the stockholders, only such business shall be conducted as shall have
been properly brought before the meeting. To be properly brought before an
annual meeting, business must be (i) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Board of Directors, (ii)
brought before the meeting by or at the direction of the Board of Directors or
(iii) otherwise properly brought before the meeting by a stockholder who (a) was
a stockholder of record of the Corporation at the time of the giving of notice
provided for in this by-law and at the time of the annual meeting, (b) is
entitled to vote with respect thereto and (c) complies with the notice
procedures set forth in this Section 11. For business to be properly brought
before an annual meeting by a stockholder, the stockholder must have given
timely notice thereof in writing to the secretary of the Corporation. To be
timely, a stockholder's notice must be delivered to or mailed and received at
the principal executive offices of the Corporation, not less than 60 days nor
more than 90 days prior to the first anniversary of the preceding year's annual
meeting; provided, however, that in the event that less than 70 days' notice or
prior public announcement 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 date on which
such notice of the date of the annual meeting was mailed or such public
announcement was made. In no event shall any adjournment or postponement of an
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annual meeting or the announcement thereof commence a new time period (or extend
any time period) for the giving of a stockholder's notice as described above. A
stockholder's notice to the secretary shall set forth as to each matter the
stockholder proposes to bring before the annual meeting (i) a brief description
of the business desired to be brought before the annual meeting, 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) and the reasons for
conducting such business at the meeting; (ii) the name and address, as they
appear on the Corporation's books, of the stockholder proposing such business;
(iii) the class or series and number of shares of the Corporation which are,
directly or indirectly, beneficially owned by the stockholder; (iv) any material
interest of the stockholder in such business; (v) a description of any
agreement, arrangement or understanding with respect to the nomination or
proposal and/or the voting of shares of any class or series of stock of the
Corporation between or among the stockholder giving the notice, the beneficial
owner, if any, on whose behalf the proposal is made, any of their respective
affiliates or associates and/or any others acting in concert with any of the
foregoing (collectively, "proponent persons"); (vi) a description of any
agreement, arrangement or understanding (including without limitation any
contract to purchase or sell, acquisition or grant of any option, right or
warrant to purchase or sell, swap or other instrument) the intent or effect of
which may be (x) to transfer to or from any proponent person, in whole or in
part, any of the economic consequences of ownership of any security of the
Corporation, (y) to increase or decrease the voting power of any proponent
person with respect to shares of any class or series of stock of the Corporation
and/or (z) to provide any proponent person, directly or indirectly, with the
opportunity to profit or share in any profit derived from, or to otherwise
benefit economically from, any increase or decrease in the value of any security
of the Corporation; (vii) a representation that that the stockholder intends to
appear in person or by proxy at the meeting to propose such business or
nomination; and (viii) a representation whether the stockholder or the
beneficial owner, if any, intends or is part of a group which intends (A) to
deliver a proxy statement and/or form of proxy to holders of at least a
percentage of the Corporation's outstanding capital stock required to approve or
adopt the proposal to elect the nominee and/or (B) otherwise to solicit proxies
from stockholders in support of such proposal or nomination. Notwithstanding
anything in these By-laws to the contrary, no business shall be conducted at an
annual meeting except in accordance with the procedures set forth in this
section and, with respect to nomination of directors, Section 5 of Article III.
The presiding officer of an annual meeting shall, if the facts warrant,
determine and declare to the meeting that business was not properly brought
before the meeting and in accordance with the provisions of this section; if he
or she should so determine, he or she shall so declare to the meeting and any
such business not properly brought before the meeting shall not be transacted.
For purposes of this section, "public announcement" shall mean disclosure in a
press release reported by Dow Jones News Service, Associated Press or a
comparable national news service. Notwithstanding the foregoing provisions of
this Section 11, a stockholder shall also comply with all 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
11, provided, however, that any reference in these By-Laws to the Exchange Act
or the rules and regulations promulgated thereunder are not intended to and
shall not limit any requirements applicable to proposals as to any other
business to be considered pursuant to this By-Law.
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ARTICLE III
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DIRECTORS
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Section 1. 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 such powers as are herein and in the Certificate of Incorporation
expressly conferred upon it, the Board of Directors shall have and may exercise
all the powers of the Corporation, subject to the provisions of the laws of
Delaware, the Certificate of Incorporation and these By-laws.
Section 2. Number, Election and Term of Office. The number of
directors which constitute the entire Board of Directors of the Corporation
shall be nine (9), and the Directors shall be elected and shall hold office only
in the manner provided in these By-laws, except as otherwise provided in the
Certificate of Incorporation and any duly authorized certificate of designation.
Except as provided in Section 4 of this ARTICLE, each director shall be elected
by the vote of the majority of the votes cast (where the number of votes cast
"for" a director exceeds the number of votes cast "against" that director) with
respect to the directors at any meeting for the election of directors at which a
quorum is present, provided that, if the number of nominees exceeds the number
of directors to be elected, the directors shall be elected by a plurality of the
shares represented in person or by proxy at any such meeting and entitled to
vote on the election of directors.
Section 3. Resignation. Any Director may resign at any time upon
written notice to the Corporation. The Governance and Strategy Committee has
established procedures that govern the resignation process for a director who
has failed to be elected in accordance with the requirements of Section 2. Such
director shall offer to tender his or her resignation to the Board of Directors,
which will then act on the recommendation of the Governance and Strategy
Committee whether to accept or reject the resignation. The Board of Directors
will publicly disclose its decision and rationale within 90 days from the date
of the certification of the election results.
Section 4. Vacancies. Vacancies and newly created directorships
resulting from any increase in the total number of Directors may be filled only
in the manner provided in the Certificate of Incorporation.
Section 5. Nominations.
(a) Subject to any duly authorized certificate of designation,
only persons who are nominated in accordance with the procedures set forth in
these By-laws shall be eligible to serve as Directors. Nominations of persons
for election to the Board of Directors of the Corporation may be made at a
meeting of stockholders (i) by or at the direction of the Board of Directors or
(ii) by any stockholder of the Corporation who was a stockholder of record at
the time of giving of notice provided for in this Section 5 and at the time of
the meeting, who is entitled to vote generally in the election of Directors at
the meeting and who shall have complied with the notice procedures set forth
below in Section 5(b).
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(b) In order for a stockholder to nominate a person for election
to the Board of Directors of the Corporation at a meeting of stockholders, such
stockholder shall have delivered timely notice of such stockholder's intent to
make such nomination in writing to the secretary of the Corporation. To be
timely, a stockholder's notice shall be delivered to or mailed and received at
the principal executive offices of the Corporation (i) in the case of an annual
meeting, not less than 60 nor more than 90 days 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 changed by more than 30 days from such
anniversary date or in the event of the first annual meeting, notice by the
stockholder to be timely must be so received not later than the close of
business on the 10th day following the earlier of the day on which notice of the
date of the meeting was mailed or public disclosure of the meeting was made, and
(ii) in the case of a special meeting at which Directors are to be elected, not
later than the close of business on the 10th day following the earlier of the
day on which notice of the date of the meeting was mailed or public disclosure
of the meeting was made. In no event shall any adjournment or postponement of an
annual meeting or the announcement thereof 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 (i) as to each person whom the
stockholder proposes to nominate for election as a Director at such meeting all
information relating to such person that is required to be disclosed in
solicitations of proxies for election of Directors, or is otherwise required, in
each case pursuant to Regulation 14A under the 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); (ii) as to the stockholder giving the
notice (A) the name and address, as they appear on the Corporation's books, of
such stockholder and (B) the class or series and number of shares of the
Corporation which are, directly or indirectly, beneficially owned by such
stockholder and also which are owned of record by such stockholder; (iii) as to
the beneficial owner, if any, on whose behalf the nomination is made, (A) the
name and address of such person and (B) the class or series and number of shares
of the Corporation which are, directly or indirectly, beneficially owned by such
person; (iv) a description of any agreement, arrangement or understanding with
respect to the nomination or proposal and/or the voting of shares of any class
or series of stock of the Corporation between or among the stockholder giving
the notice, the beneficial owner, if any, on whose behalf the proposal is made,
any of their respective affiliates or associates and/or any proponent persons;
and (v) a description of any agreement, arrangement or understanding (including
without limitation any contract to purchase or sell, acquisition or grant of any
option, right or warrant to purchase or sell, swap or other instrument) the
intent or effect of which may be (x) to transfer to or from any proponent
person, in whole or in part, any of the economic consequences of ownership of
any security of the Corporation, (y) to increase or decrease the voting power of
any proponent person with respect to shares of any class or series of stock of
the Corporation and/or (z) to provide any proponent person, directly or
indirectly, with the opportunity to profit or share in any profit derived from,
or to otherwise benefit economically from, any increase or decrease in the value
of any security of the Corporation. A stockholder providing notice of a proposed
nomination for election to the Board or other business proposed to be brought
before a meeting (whether given pursuant to this Section 11 or Section 5 of
Article III) shall update and supplement such notice from time to time to the
extent necessary so that the information provided or required to be provided in
such notice shall be true and correct as of the record date for the meeting and
as of the date that is 15 days prior to the meeting or any adjournment or
postponement thereof, such update and supplement
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shall be delivered in writing to the secretary at the principal executive
offices of the Corporation not later than 5 days after the record date for the
meeting (in the case of any update and supplement required to be made as of the
record date), and not later than 10 days prior to the date for the meeting or
any adjournment or postponement thereof (in the case of any update and
supplement required to be made as of 15 days prior to the meeting or any
adjournment or postponement thereof). 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 of the
Corporation. 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.
(c) Subject to any duly authorized certificate of designation, no
person shall be eligible to serve as a Director of the Corporation unless
nominated in accordance with the procedures set forth in this Section 5 or
Section 4 above. 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, and if he or she
should so determine, he or she shall so declare to the meeting and the defective
nomination shall be disregarded. A stockholder seeking to nominate a person to
serve as a Director must 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.
Section 6. Annual Meetings. The annual meeting of the Board of
Directors shall be held without other notice than this By-law immediately after,
and at the same place as, the annual meeting of stockholders.
Section 7. Other Meetings and Notice. Regular meetings, other than the
annual meeting, of the Board of Directors may be held without notice at such
time and at such place as shall from time to time be determined by resolution of
the Board of Directors. Special meetings of the Board of Directors may be called
by the chairman of the board, the chief executive officer (if the chief
executive officer is a Director) or, upon the written request of at least a
majority of the Directors then in office, the secretary of the Corporation on at
least 24 hours notice to each Director, either personally, by telephone, by mail
or by telecopy (notice by mail shall be deemed delivered 3 days after deposit in
the U.S. mail).
Section 8. Chairman of the Board. The Board of Directors shall elect,
by the affirmative vote of a majority of the total number of Directors then in
office, a chairman of the board, who shall preside at all meetings of the
stockholders and Board of Directors at which he or she is present. The chairman
of the board shall lead all meetings of the stockholders and Board of Directors
at which he or she is present and shall serve on and lead appropriate committees
as reasonably requested by the Board of Directors, set meeting schedules and
agendas, manage information flow to the Board of Directors to assure appropriate
understanding of and discussion regarding matters of interest or concern to the
Board of Directors, make himself or herself available to the Corporation, as
appropriate, attend external meetings and presentations, as appropriate, and
have such additional powers and perform such additional duties as the Board of
Directors may from time to time prescribe. If the chairman of the board ceases
to serve in such capacity, then the Board of Directors shall elect, by the
affirmative vote
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of a majority of the total number of Directors then in office, a successor
chairman of the board and shall designate such person as either an executive
chairman of the board or a non-executive chairman of the board, in its
discretion. If the chairman of the board is not present at a meeting of the
stockholders or the Board of Directors, the chief executive officer (if the
chief executive officer is a Director and is not also the chairman of the board)
shall preside at such meeting, and, if the chief executive officer also is not
present at such meeting, a majority of the Directors present at such meeting
shall elect one of their members to so preside.
Section 9. Quorum, Required Vote and Adjournment. A majority of the
total number of Directors then in office shall constitute a quorum for the
transaction of business. Unless by express provision of an applicable law, the
Certificate of Incorporation or these By-laws a different vote is required, the
vote of a majority of Directors present at a meeting at which a quorum is
present shall be the act of the Board of Directors. If a quorum shall not be
present at any meeting of the Board of Directors, the Directors present thereat
may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
Section 10. Committees. The Board of Directors may, by resolution
passed by a majority of the total number of Directors then in office, designate
one or more committees, each committee to consist of one or more of the
Directors of the Corporation, which to the extent provided in such resolution or
these By-laws shall have, and may exercise, the powers of the Board of Directors
in the management and affairs of the Corporation, except as otherwise limited by
law. 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. The Board of Directors will endeavor to ensure
that each member of any such committee will satisfy the applicable independence
requirements of any stock exchange upon which the Corporation's securities are
then listed; provided however, that any failure or alleged failure to satisfy
such independence requirements shall not affect the validity of any decision
made or action taken by such committee. Such committee or committees shall have
such name or names as may be determined from time to time by resolution adopted
by the Board of Directors. Each committee shall keep regular minutes of its
meetings and report the same to the Board of Directors upon request.
Section 11. Committee Rules. Each committee of the Board of Directors
may fix its own rules of procedure and shall hold its meetings as provided by
such rules, except as may otherwise be provided by a resolution of the Board of
Directors designating such committee. Unless otherwise provided in such a
resolution, the presence of at least a majority of the members of the committee
shall be necessary to constitute a quorum. Unless otherwise provided in such a
resolution, in the event that a member and that member's alternate, if
alternates are designated by the Board of Directors, of such committee is or are
absent or disqualified, the member or members thereof present at any meeting and
not disqualified from voting, whether or not such member or members constitute a
quorum, may unanimously appoint another member of the Board of Directors to act
at the meeting in place of any such absent or disqualified member.
Section 12. Communications Equipment. Members of the Board of
Directors or any committee thereof may participate in and act at any meeting of
such board or committee through the use of a conference telephone or other
communications equipment by means of which all
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persons participating in the meeting can hear and speak with each other, and
participation in the meeting pursuant to this section shall constitute presence
in person at the meeting.
Section 13. Waiver of Notice and Presumption of Assent. Any member of
the Board of Directors or any committee thereof who is present at a meeting
shall be conclusively presumed to have waived notice of such meeting except when
such member attends 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. Such member shall be conclusively presumed to have assented
to any action taken unless his or her dissent shall be entered in the minutes of
the meeting or unless his or her written dissent to such action shall be filed
with the person acting as the secretary of the meeting before the adjournment
thereof or shall be forwarded by registered mail to the secretary of the
Corporation immediately after the adjournment of the meeting. Such right to
dissent shall not apply to any member who voted in favor of such action.
Section 14. 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 members of such board 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 or committee.
ARTICLE IV
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OFFICERS
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Section 1. Number. The officers of the Corporation shall be elected by
the Board of Directors and shall consist of a chairman of the board, a chief
executive officer, a president, one or more vice-presidents, a secretary, a
chief financial officer and such other officers and assistant officers as may be
deemed necessary or desirable by the Board of Directors. Notwithstanding the
foregoing, the Board of Directors may from time to time designate the chairman
of the board as a "non-executive chairman of the board," in which case such
person will not be an officer of the Corporation but will otherwise have all of
the duties and responsibilities of the chairman of the board hereunder except as
otherwise determined by the Board of Directors. Any number of offices may be
held by the same person, except that neither the chief executive officer nor the
president shall also hold the office of secretary. In its discretion, the Board
of Directors may choose not to fill any office for any period as it may deem
advisable, except that the offices of president and secretary shall be filled as
expeditiously as possible.
Section 2. Election and Term of Office. The officers of the
Corporation shall be elected annually by the Board of Directors at its first
meeting held after each annual meeting of stockholders or as soon thereafter as
convenient. Vacancies may be filled or new offices created and filled at any
meeting of the Board of Directors. Each officer shall hold office until a
successor is duly elected and qualified or until his or her earlier death,
resignation or removal as hereinafter provided.
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Section 3. Removal. Any officer or agent elected by the Board of
Directors may be removed by the Board of Directors at its discretion, but such
removal shall be without prejudice to the contract rights, if any, of the person
so removed.
Section 4. Vacancies. Any vacancy occurring in any office because of
death, resignation, removal, disqualification or otherwise may be filled by the
Board of Directors.
Section 5. Compensation. Compensation of all executive officers shall
be approved by the Board of Directors, and no officer shall be prevented from
receiving such compensation by virtue of his or her also being a Director of the
Corporation; provided however, that compensation of all executive officers may
be determined by a committee established for that purpose if so authorized by
the unanimous vote of the Board of Directors.
Section 6. Chairman of the Board. The chairman of the board shall
preside at all meetings of the stockholders and the Board of Directors and shall
have such other powers and perform such other duties as may be prescribed to him
or her by the Board of Directors or provided in these By-laws.
Section 7. Chief Executive Officer. The chief executive officer shall
have the powers and perform the duties incident to that position. Subject to the
powers of the Board of Directors and the chairman of the board, the chief
executive officer shall be in the general and active charge of the entire
business and affairs of the Corporation, and shall be its chief policy making
officer. The chief executive officer shall have such other powers and perform
such other duties as may be prescribed by the Board of Directors or provided in
these By-laws. The chief executive officer is authorized to execute bonds,
mortgages and other contracts requiring a seal, under the seal of the
Corporation, except where required or permitted by law to be otherwise signed
and executed and except where the signing and execution thereof shall be
expressly delegated by the Board of Directors to some other officer or agent of
the Corporation. Whenever the president is unable to serve, by reason of
sickness, absence or otherwise, the chief executive officer, if a different
person, shall perform all the duties and responsibilities and exercise all the
powers of the president.
Section 8. The President. The president of the Corporation shall,
subject to the powers of the Board of Directors, the chairman of the board and
the chief executive officer, have general charge of the business, affairs and
property of the Corporation, and control over its officers, agents and
employees. The president shall see that all orders and resolutions of the Board
of Directors are carried into effect. The president is authorized to execute
bonds, mortgages and other contracts requiring a seal, under the seal of the
Corporation, except where required or permitted by law to be otherwise signed
and executed and except where the signing and execution thereof shall be
expressly delegated by the Board of Directors to some other officer or agent of
the Corporation. The president shall have such other powers and perform such
other duties as may be prescribed by the chairman of the board, the chief
executive officer, the Board of Directors or as may be provided in these
By-laws.
Section 9. Vice Presidents. The vice president, or if there shall be
more than one, the vice presidents in the order determined by the Board of
Directors and the chief executive officer (if he or she is then available),
shall, in the absence or disability of the president, act with all
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of the powers and be subject to all the restrictions of the president. The vice
presidents shall also perform such other duties and have such other powers as
the Board of Directors, the chairman of the board, the chief executive officer,
the president or these By-laws may, from time to time, prescribe. The vice
presidents may also be designated as executive vice presidents or senior vice
presidents, as the Board of Directors may from time to time prescribe.
Section 10. The Secretary and Assistant Secretaries. The secretary
shall attend all meetings of the Board of Directors, all meetings of the
committees thereof and all meetings of the stockholders and record all the
proceedings of the meetings in a book or books to be kept for that purpose or
shall ensure that his or her designee attends each such meeting to act in such
capacity. Under the chairman of the board's supervision, the secretary shall
give, or cause to be given, all notices required to be given by these By-laws or
by law; shall have such powers and perform such duties as the Board of
Directors, the chairman of the board, the chief executive officer, the president
or these By-laws may, from time to time, prescribe; and shall have custody of
the corporate seal of the Corporation. The secretary, or an assistant secretary,
shall have authority to affix the corporate seal to any instrument requiring it
and when so affixed, it may be attested by his or her signature or by the
signature of such assistant secretary. The Board of Directors may give general
authority to any other officer to affix the seal of the Corporation and to
attest the affixing by his or her signature. The assistant secretary, or if
there be more than one, any of the assistant secretaries, shall in the absence
or disability of the secretary, perform the duties and exercise the powers of
the secretary and shall perform such other duties and have such other powers as
the Board of Directors, the chairman of the board, the chief executive officer,
the president, or the secretary may, from time to time, prescribe.
Section 11. The Chief Financial Officer. The chief financial officer
shall have the custody of the corporate funds and securities; shall keep full
and accurate all books and accounts of the Corporation as shall be necessary or
desirable in accordance with applicable law or generally accepted accounting
principles; shall deposit all monies and other valuable effects in the name and
to the credit of the Corporation as may be ordered by the chairman of the board
or the Board of Directors; shall cause the funds of the Corporation to be
disbursed when such disbursements have been duly authorized, taking proper
vouchers for such disbursements; and shall render to the Board of Directors, at
its regular meeting or when the Board of Directors so requires, an account of
the Corporation; shall have such powers and perform such duties as the Board of
Directors, the chairman of the board, the chief executive officer, the president
or these By-laws may, from time to time, prescribe. If required by the Board of
Directors, the chief financial officer shall give the Corporation a bond (which
shall be rendered every six years) in such sums and with such surety or sureties
as shall be satisfactory to the Board of Directors for the faithful performance
of the duties of the office of chief financial officer and for the restoration
to the Corporation, in case of death, resignation, retirement or removal from
office of all books, papers, vouchers, money and other property of whatever kind
in the possession or under the control of the chief financial officer belonging
to the Corporation.
Section 12. Other Officers, Assistant Officers and Agents. Officers,
assistant officers and agents, if any, other than those whose duties are
provided for in these By-laws, shall have such authority and perform such duties
as may from time to time be prescribed by resolution of the Board of Directors.
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Section 13. Absence or Disability of Officers. In the case of the
absence or disability of any officer of the Corporation and of any person hereby
authorized to act in such officer's place during such officer's absence or
disability, the Board of Directors may by resolution delegate the powers and
duties of such officer to any other officer or to any Director, or to any other
person selected by it.
ARTICLE V
---------
INDEMNIFICATION
---------------
Section 1. Procedure for Indemnification. Any indemnification of a
Director or officer of the Corporation or advance of expenses under Section 2 of
ARTICLE NINE of the Certificate of Incorporation shall be made promptly, and in
any event within forty-five days (or, in the case of an advance of expenses,
twenty days), upon the written request of the Director or officer. If a
determination by the Corporation that the Director or officer is entitled to
indemnification pursuant to ARTICLE NINE of the Certificate of Incorporation is
required, and the Corporation fails to respond within sixty days to a written
request for indemnity, the Corporation shall be deemed to have approved the
request. If the Corporation denies a written request for indemnification or
advance of expenses, in whole or in part, or if payment in full pursuant to such
request is not made within forty-five days (or, in the case of an advance of
expenses, twenty days), the right to indemnification or advances as granted by
ARTICLE NINE of the Certificate of Incorporation shall be enforceable by the
Director or officer in any court of competent jurisdiction. Such person's costs
and expenses incurred in connection with successfully establishing his or her
right to indemnification, in whole or in part, in any such action shall also be
indemnified by the Corporation. It shall be a defense to any such action that
the claimant has not met the standards of conduct which make it permissible
under the Delaware General Corporation Law for the Corporation to indemnify the
claimant for the amount claimed, but the burden of such defense shall be on the
Corporation. The procedure for indemnification of other employees and agents for
whom indemnification is provided pursuant to Section 2 of ARTICLE NINE of the
Certificate of Incorporation shall be the same procedure set forth in this
Section 1 for Directors or officers, unless otherwise set forth in the action of
the Board of Directors providing indemnification for such employee or agent.
Section 2. Insurance. The Corporation may purchase and maintain
insurance on its own behalf and on behalf of any person who is or was a
Director, officer, employee, partner, member, manager, trustee, fiduciary or
agent of the Corporation or a wholly owned subsidiary of the Corporation or was
serving at the request of the Corporation or a wholly owned subsidiary of the
Corporation as a Director, officer, employee, partner, member, manager, trustee,
fiduciary or agent of another corporation, partnership, joint venture, limited
liability company, trust or other entity or enterprise against any expense,
liability or loss asserted against him or her and incurred by him or her in any
such capacity, whether or not the Corporation would have the power to indemnify
such person against such expenses, liability or loss under the Delaware General
Corporation Law.
Section 3. Reliance. Persons who after the date of the adoption of
this provision become or remain Directors or officers of the Corporation or who,
while a Director or officer of the Corporation, become or remain a Director,
officer, employee or agent of a subsidiary, shall
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be conclusively presumed to have relied on the rights to indemnity, advance of
expenses and other rights contained in ARTICLE NINE of the Certificate of
Incorporation in entering into or continuing such service. The rights to
indemnification and to the advance of expenses conferred in ARTICLE NINE of the
Certificate of Incorporation shall apply to claims made against an indemnitee
arising out of acts or omissions which occurred or occur both prior and
subsequent to the adoption hereof.
Section 4. Vesting of Indemnification and Advance of Expenses. The
rights to indemnification and to the advance of expenses conferred in ARTICLE
NINE of the Certificate of Incorporation shall (i) vest at the time that such
person became a Director, officer or employee of the Corporation or a wholly
owned subsidiary of the Corporation or, while a Director, officer or employee of
the Corporation or a wholly owned subsidiary of the Corporation, became at the
request of the Corporation or a wholly owned subsidiary of the Corporation a
Director, officer, employee, partner, member, manager, trustee, fiduciary or
agent of another corporation or of a partnership, joint venture, limited
liability company, trust or other entity or enterprise, including service with
respect to an employee benefit plan of the Corporation and (ii) continue as to
such person even though he or she may have ceased to be a Director, officer or
employee of the Corporation or a wholly owned subsidiary of the Corporation or a
Director, officer, employee, partner, member, manager, trustee, fiduciary or
agent of another corporation or of a partnership, joint venture, limited
liability company, trust or other entity or enterprise, including service with
respect to an employee benefit plan of the Corporation.
Section 5. Non-Exclusivity of Rights. The rights to indemnification
and to the advance of expenses conferred in ARTICLE NINE of the Certificate of
Incorporation shall not be exclusive of any other right which any person may
have or hereafter acquire under this Certificate or under any statute, by-law,
agreement, vote of stockholders or disinterested Directors or otherwise.
ARTICLE VI
----------
CERTIFICATES OF STOCK
---------------------
Section 1. Form and Transfer.
(a) The shares of capital stock of the Corporation shall be
represented by a certificate, provided that the Board of Directors of the
Corporation may adopt a resolution permitting shares to be uncertificated. Each
such share of capital stock may be issued in book-entry form and otherwise
eligible for registration under a direct registration system.
(b) Notwithstanding the adoption of any such resolution providing
for uncertificated shares, every holder of capital stock in the Corporation
shall be entitled to have a certificate, signed by, or in the name of the
Corporation by the chairman of the board, the chief executive officer or the
president and the secretary or an assistant secretary of the Corporation,
certifying the number of shares owned by such holder in the Corporation. If such
a certificate is countersigned (i) by a transfer agent or an assistant transfer
agent other than the Corporation or its employee or (ii) by a registrar, other
than the Corporation or its employee, the signature of any such chairman of the
board, chief executive officer, president, secretary or assistant secretary
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may be facsimiles. In case any officer or officers who have signed, or whose
facsimile signature or signatures have been used on, any such certificate or
certificates shall cease to be such officer or officers of the Corporation
whether because of death, resignation or otherwise before such certificate or
certificates have been delivered by the Corporation, such certificate or
certificates may nevertheless be issued and delivered as though the person or
persons who signed such certificate or certificates or whose facsimile signature
or signatures have been used thereon had not ceased to be such officer or
officers of the Corporation. All certificates for shares shall be consecutively
numbered or otherwise identified. The name of the person to whom the shares
represented thereby are issued, with the number of shares and date of issue,
shall be entered on the books of the Corporation.
(c) Shares of capital stock of the Corporation represented by
certificates shall only be transferred on the books of the Corporation by the
holder of record thereof or by such holder's attorney duly authorized in
writing, upon surrender to the Corporation of the certificate or certificates
for such shares endorsed by the appropriate person or persons, with such
evidence of the authenticity of such endorsement, transfer, authorization and
other matters as the Corporation may reasonably require, and accompanied by all
necessary stock transfer stamps. In that event, it shall be the duty of the
Corporation to issue a new certificate to the person entitled thereto, cancel
the old certificate or certificates and record the transaction on its books.
Each such new certificate will be registered in such name as is requested by the
holder of the surrendered certificate and shall be substantially identical in
form to the surrendered certificate. In the case of uncertificated shares of
capital stock of the Corporation, transfer shall be made only upon receipt of
transfer documentation reasonably acceptable to the Corporation. The Board of
Directors may appoint a bank or trust company organized under the laws of the
United States or any state thereof to act as its transfer agent or registrar, or
both in connection with the transfer of any class or series of securities of the
Corporation.
Section 2. Lost Certificates. The Board of Directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates previously issued by the Corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates, the Corporation
may, in its discretion and as a condition precedent to the issuance thereof,
require the owner of such lost, stolen or destroyed certificate or certificates,
or his or her legal representative, to give the Corporation a bond sufficient to
indemnify the Corporation against any claim that may be made against the
Corporation on account of the loss, theft or destruction of any such certificate
or the issuance of such new certificate.
Section 3. Fixing a Record Date for Stockholder Meetings. 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, the Board of
Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors, and which record date shall not be more than 60 nor less than 10 days
before the date of such meeting. 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 the close of business on the next
day preceding the day on which notice is first given. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders
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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. Fixing a Record Date for Other Purposes. In order that the
Corporation may determine the stockholders entitled to receive payment of any
dividend or other distribution or allotment or any rights or the stockholders
entitled to exercise any rights in respect of any change, conversion or exchange
of stock, or for the purposes of any other lawful action, the Board of Directors
may fix a record date, which record date shall not precede the date upon which
the resolution fixing the record date is adopted, and which record date shall be
not more than 60 days nor less than 10 days prior to such action. If no record
date is fixed, the record date for determining stockholders for any such purpose
shall be at the close of business on the day on which the Board of Directors
adopts the resolution relating thereto.
Section 5. Registered Stockholders. Prior to the surrender to the
Corporation of the certificate or certificates for a share or shares of stock
with a request to record the transfer of such share or shares, the Corporation
may treat the registered owner as the person entitled to receive dividends, to
vote, to receive notifications and otherwise to exercise all the rights and
powers of an owner. The Corporation 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.
Section 6. Subscriptions for Stock. Unless otherwise provided for in
the subscription agreement, subscriptions for shares shall be paid in full at
such time, or in such installments and at such times, as shall be determined by
the Board of Directors. Any call made by the Board of Directors for payment on
subscriptions shall be uniform as to all shares of the same class or as to all
shares of the same series. In case of default in the payment of any installment
or call when such payment is due, the Corporation may proceed to collect the
amount due in the same manner as any debt due the Corporation.
ARTICLE VII
-----------
GENERAL PROVISIONS
------------------
Section 1. Dividends. Dividends upon the capital stock of the
Corporation, subject to the provisions of the Certificate of Incorporation, if
any, may be declared by the Board of Directors at any regular or special
meeting, in accordance with applicable law. Dividends may be paid in cash, in
property or in shares of the capital stock, subject to the provisions of the
Certificate of Incorporation. Before payment of any dividend, there may be set
aside out of any funds of the Corporation available for dividends such sum or
sums as the Directors from time to time, in their absolute discretion, think
proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the Corporation, or
any other purpose and the Directors may modify or abolish any such reserve in
the manner in which it was created.
Section 2. Checks, Drafts or Orders. All checks, drafts or other
orders for the payment of money by or to the Corporation and all notes and other
evidences of indebtedness issued in the name of the Corporation shall be signed
by such officer or officers, agent or agents
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of the Corporation, and in such manner, as shall be determined by resolution of
the Board of Directors or a duly authorized committee thereof.
Section 3. Contracts. In addition to the powers otherwise granted to
officers pursuant to ARTICLE IV hereof, the Board of Directors may authorize any
officer or officers, or any agent or agents, of the Corporation to enter into
any contract or to execute and deliver any instrument in the name of and on
behalf of the Corporation, and such authority may be general or confined to
specific instances.
Section 4. Fiscal Year. The fiscal year of the Corporation shall be
fixed by resolution of the Board of Directors.
Section 5. Corporate Seal. The Board of Directors may provide a
corporate seal which shall be in the form of a circle and shall have inscribed
thereon the name of the Corporation and the words "Corporate Seal, Delaware."
The seal may be used by causing it or a facsimile thereof to be impressed or
affixed or reproduced or otherwise.
Section 6. Voting Securities Owned By Corporation. Voting securities
in any other Corporation held by the Corporation shall be voted by the chief
executive officer, the president or a vice president, unless the Board of
Directors specifically confers authority to vote with respect thereto, which
authority may be general or confined to specific instances, upon some other
person or officer. Any person authorized to vote securities shall have the power
to appoint proxies, with general power of substitution.
Section 7. Inspection of Books and Records. The Board of Directors
shall have power from time to time to determine to what extent and at what times
and places and under what conditions and regulations the accounts and books of
the Corporation, or any of them, shall be open to the inspection of the
stockholders; and no stockholder shall have any right to inspect any account or
book or document of the Corporation, except as conferred by the laws of the
State of Delaware, unless and until authorized so to do by resolution of the
Board of Directors or of the stockholders of the Corporation.
Section 8. Section Headings. Section headings in these By-laws are for
convenience of reference only and shall not be given any substantive effect in
limiting or otherwise construing any provision herein.
Section 9. Inconsistent Provisions. In the event that any provision of
these By-laws is or becomes inconsistent with any provision of the Certificate
of Incorporation, the General Corporation Law of the State of Delaware or any
other applicable law, the provision of these By-laws shall not be given any
effect to the extent of such inconsistency but shall otherwise be given full
force and effect.
Section 10. Notices. All notices referred to herein shall be in
writing, shall be delivered personally or by first class mail, postage prepaid,
and shall be deemed to have been given when so delivered or mailed to the
Corporation at its principal executive offices and to any stockholder at such
holder's address as it appears in the stock records of the Corporation (unless
otherwise specified in a written notice to the Corporation by such holder).
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ARTICLE VIII
------------
AMENDMENTS
----------
In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors of the Corporation is expressly authorized to
make, alter, amend, change, add to or repeal these By-laws by the affirmative
vote of a majority of the total number of Directors then in office. Any
alteration or repeal of these By-laws by the stockholders of the Corporation
shall require the affirmative vote of a majority of the outstanding shares of
the Corporation entitled to vote on such alteration or repeal.
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