Contract
Exhibit
3.1
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_______________________________________________________________________________
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of
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______________________
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Incorporated
under the Laws of the
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State
of Delaware
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______________________
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As
amended through December 17, 2009
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_______________________________________________________________________________
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Table
of Contents
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Page
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ARTICLE
1
OFFICES
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Section
1.01.
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Registered
Office
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1
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Section
1.02.
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Other
Offices
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1
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ARTICLE
2
STOCKHOLDERS
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Section
2.01.
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Annual
Meeting
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1
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Section
2.02.
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Special
Meetings.
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1
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Section
2.03.
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Place
of Meetings
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2
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Section
2.04.
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Notice
of Meetings
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2
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Section
2.05.
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Organization.
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2
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Section
2.06.
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Record
Date
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3
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Section
2.07.
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List
of Stockholders Entitled to Vote
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4
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Section
2.08.
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Quorum.
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4
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Section
2.09.
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Adjourned
Meeting
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5
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Section
2.10.
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Order
of Business
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5
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Section
2.11.
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Vote
of Stockholders
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5
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Section
2.12.
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Proxies
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5
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Section
2.13.
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Notice
of Stockholder Business
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5
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ARTICLE
3
BOARD
OF DIRECTORS
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Section
3.01.
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Number.
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9
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Section
3.02.
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Election
and Term of Office
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9
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Section
3.03.
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General
Powers.
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9
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Section
3.04.
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Place
of Meetings
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9
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Section
3.05.
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Regular
Meetings
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9
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Section
3.06.
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Special
Meetings
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9
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i
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Section
3.07.
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Business
that may be Transacted
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9
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Section
3.08.
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Organization
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10
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Section
3.09.
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Quorum
and Adjournment
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10
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Section
3.10.
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Voting.
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10
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Section
3.11.
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Compensation.
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10
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Section
3.12.
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Action
Without a Meeting.
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10
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Section
3.13.
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Resignations
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10
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Section
3.14.
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Removal
of Directors
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11
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Section
3.15.
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Filling
of Vacancies
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11
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ARTICLE
4
COMMITTEES
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Section
4.01.
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Appointment
and Powers
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11
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Section
4.02.
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Procedural
Rules
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11
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Section
4.03.
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Minutes
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12
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Section
4.04.
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Removal
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12
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Section
4.05.
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Vacancies
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12
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ARTICLE
5
OFFICERS
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Section
5.01.
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Designation
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12
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Section
5.02.
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Terms
of Office; Vacancies
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12
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Section
5.03.
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Resignations
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12
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Section
5.04.
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Chief
Executive Officer
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13
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Section
5.05.
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Vice
Presidents and Other Officers
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13
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Section
5.06.
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The
Secretary
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13
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Section
5.07.
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The
Treasurer
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13
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Section
5.08.
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Additional
Powers and Duties
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14
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Section
5.09.
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Compensation
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14
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ARTICLE
6
INDEMNIFICATION
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Section
6.01.
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Actions
other than those by or in the right of the Corporation
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14
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Section
6.02.
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Actions
by or in the right of the Corporation
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14
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Section
6.03.
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Indemnification
against Expenses
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15
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ii
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Section
6.04.
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Authorization
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15
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Section
6.05.
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Payment
of Expenses in Advance of Final Disposition
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15
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Section
6.06.
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Non-Exclusivity
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15
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Section
6.07.
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Application.
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16
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ARTICLE
7
STOCK
CERTIFICATES
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Section
7.01.
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Issuance
of Certificates
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16
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Section
7.02.
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Form
of Certificates
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16
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Section
7.03.
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Lost,
Stolen or Destroyed Certificates
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16
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ARTICLE
8
TRANSFERS
OF STOCK
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Section
8.01.
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Registration
of Transfers
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17
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Section
8.02.
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Transfer
Agents and Registrars
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17
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ARTICLE
9
DELEGATION
OF AUTHORITY
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Section
9.01.
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Officers’
Duties
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17
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Section
9.02.
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Negotiable
Instruments
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17
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Section
9.03.
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Voting
Upon Stocks
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18
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Section
9.04.
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Attorneys
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18
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ARTICLE
10
MISCELLANEOUS
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Section
10.01.
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Seal.
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18
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Section
10.02.
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Fiscal
Year
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18
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Section
10.03.
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Inspection
of Books
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18
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Section
10.04.
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Registered
Stockholders
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19
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Section
10.05.
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Waiver
of Notice
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19
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Section
10.06.
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Amendment
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19
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iii
OF
ARTICLE
1
Offices
SECTION
1.01 Registered
Office. The registered office of the
Corporation is located in the City of Dover, County of Kent, State of
Delaware.
SECTION
1.02 Other Offices. The
Corporation may establish or discontinue such other offices, including its
principal place of business, at such places within or without the State of
Delaware as the Board of Directors may from time to time appoint or the business
of the Corporation may warrant.
ARTICLE
2
Stockholders
SECTION
2.01 Annual Meeting. The annual
meeting of stockholders shall be held on the third Tuesday of May in each year
or at such other date as shall be determined by the Board of Directors. If any
such day is a legal holiday, the annual meeting shall be held on the next
succeeding business day. If the annual meeting is not held on the date
designated therefor, the Board of Directors shall cause the meeting to be held
as soon as feasible thereafter and any elections held or other business
transacted at such meeting shall be valid as if held or transacted on the date
designated for the annual meeting.
SECTION
2.02 Special Meetings. Special
meetings of the holders of any class or of all classes of the Corporation’s
capital stock may be called at any time by the Board of Directors, and shall be
called by the Chairman of the Board, the Co-Chairman of the Board or the
Secretary upon the written request, stating the purposes of any such meeting, of
a majority of the Board of Directors. Special meetings of the holders of all
classes of the Corporation’s capital stock entitled to vote thereat shall also
be called by the Chairman of the Board, the Co-Chairman of the Board or the
Secretary upon the written request of the holders of no less than 25% of the
outstanding shares of all classes of capital stock entitled to vote thereat. The
written request from such holders shall be valid and effective only if delivered
to the Secretary at the principal executive offices of the Corporation and only
if it sets forth (A) as to any business (including the nomination of any person
for election or reelection as a director of the Corporation, in which case the
questionnaire, representation and agreement required by Section 2.13(d) of these
By-Laws must also be delivered along with and at the same time as such written
request) that the stockholders requesting the special meeting propose to bring
before the special meeting, a brief
1
description
of such business, the reasons for conducting such business at the special
meeting, any material interest in such business of such stockholders and the
beneficial owners, if any, on whose behalf the proposal to conduct such business
is made and, if such business includes a proposal to amend either the
Certificate of Incorporation or these By-Laws, the text of the proposed
amendment; and (B) as to the stockholders giving the notice and the beneficial
owners, if any, on whose behalf the proposal to conduct such business (including
the nomination of any person for election or reelection as a director of the
Corporation) is made, (i) the name and address of such stockholders, as they
appear on the Corporation’s books, and of such beneficial owners, (ii) the class
and number of shares of the Corporation which are owned beneficially and of
record by such stockholders and such beneficial owners, (iii) any agreements,
arrangements or understandings entered into by such stockholders, such
beneficial owners or their respective affiliates with respect to equity
securities of the Corporation, including any put or call arrangements,
derivative securities, short positions, borrowed shares or swap or similar
arrangements, specifying in each case the effect of such agreements,
arrangements or understandings on any voting or economic rights of equity
securities of the Corporation, in each case as of the date of the notice and in
each case describing any changes in voting or economic rights which may arise
pursuant to the terms of such agreements, arrangements or understandings, (iv)
to the extent not covered by clauses (ii) and (iii), any disclosures that would
be required pursuant to Item 5 or Item 6 of Schedule 13D if the requirements
therein were applicable to such stockholders and such beneficial owners and (v)
an undertaking by such stockholders and such beneficial owners to notify the
Corporation in writing of any change in the information called for by clauses
(ii), (iii) and (iv) as of the record date for such special meeting, by notice
received by the Secretary not later than the 10th day following such record
date, and thereafter by notice so given and received within two business days of
any change in such information and, in any event, as of the close of business on
the day preceding the special meeting date. Special meetings shall be called by
means of a notice as provided for in Section 2.04 hereof.
SECTION
2.03 Place of Meetings. All
meetings of the stockholders shall be held at such place within or without the
State of Delaware as shall be designated by the Board of Directors.
SECTION
2.04 Notice of Meetings. Written
notice of each meeting of the stockholders, stating the date, hour, place and
purpose or purposes thereof, shall be given, personally or by mail, to each
stockholder entitled to vote at the meeting not less than ten or more than sixty
days before the date of meeting. If mailed, such notice shall be deposited in
the United States mail, postage prepaid, directed to the stockholder at his
address as it appears on the records of the Corporation.
SECTION
2.05 Organization. The Chairman of
the Board or, in his absence, the Co-Chairman of the Board (or, in his absence,
the Chief Executive Officer or, in his absence, an officer specified by the
Board of Directors) shall be chairman at all meetings of stockholders at which
he is present, and as such chairman shall call such meetings to order and
preside thereat. If these persons shall be absent from any meeting of
stockholders, any stockholder or the proxy of any stockholder entitled to vote
at the meeting may call it to order, and a chairman to preside thereat shall be
elected by a majority of those present and entitled to vote.
2
SECTION
2.06 Record Date.
(a) In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board of Directors may fix, in advance, a record date,
which shall not be more than sixty nor less than ten days before the date of
such meeting, nor more than sixty days prior to any other action. If no record
date is fixed:
(i) 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.
(ii) The
record date for determining stockholders for any other purpose shall be at the
close of business on the day on which the Board of Directors adopts the
resolution relating thereto, except that the record date for the determination
of stockholders entitled to express consent to corporate action in writing
without a meeting shall be determined in accordance with Section
2.06(b).
(b) The
record date for determining stockholders entitled to express consent to
corporate action in writing without a meeting shall be as fixed by the Board of
Directors or as otherwise established under this Section 2.06(b). Any person
seeking to have the stockholders authorize or take corporate action by written
consent without a meeting shall, by written notice addressed to the Secretary of
the Corporation and delivered to the Corporation and signed by a stockholder of
record, request that a record date be fixed for such purpose. The written notice
must contain the information set forth in Section 2.06(c). Following receipt of
the notice, the Board of Directors shall have ten (10) days to determine the
validity of the request, and if appropriate, adopt a resolution fixing the
record date for such purpose. The record date for such purpose shall be no more
than ten (10) days after the date upon which the resolution fixing the record
date is adopted by the Board and shall not precede the date such resolution is
adopted. If the Board fails within ten (10) days after the Corporation receives
such notice to fix a record date for such purpose, the record date shall be the
day on which the first written consent is delivered to the Corporation in the
manner prescribed by applicable Delaware law; except that, if prior action by
the Board of Directors is required under the provisions of Delaware law, the
record date shall be at the close of business on the day on which the Board of
Directors adopts the resolution taking such prior action.
(c) Any
stockholder’s notice required by Section 2.06(b) shall be valid and effective
only if delivered to the Secretary at the principal executive offices of the
Corporation and only if it sets forth (A) as to any action (including the
nomination of any person for election or reelection as a director of the
Corporation, in which case the questionnaire, representation and agreement
required by Section 2.13(d) of these By-Laws must also be delivered along with
and at the same time as such stockholder’s notice) that the stockholder proposes
to take by consent, a brief description of such action, the reasons for taking
such action, any material interest in such action of such stockholder and the
beneficial owner, if any, on whose behalf the proposal to take such action is
made and, if such action includes a proposal to amend either the Certificate of
3
Incorporation
or these By-Laws, the text of the proposed amendment; and (B) as to the
stockholder giving the notice and the beneficial owner, if any, on whose behalf
the proposal to take such action (including the nomination of any person for
election or reelection as a director of the Corporation) is made, (i) the name
and address of such stockholder, as they appear on the Corporation’s books, and
of such beneficial owner, (ii) the class and number of shares of the Corporation
which are owned beneficially and of record by such stockholder and such
beneficial owner, (iii) any agreements, arrangements or understandings entered
into by such stockholder, such beneficial owner or their respective affiliates
with respect to equity securities of the Corporation, including any put or call
arrangements, derivative securities, short positions, borrowed shares or swap or
similar arrangements, specifying in each case the effect of such agreements,
arrangements or understandings on any voting or economic rights of equity
securities of the Corporation, in each case as of the date of the notice and in
each case describing any changes in voting or economic rights which may arise
pursuant to the terms of such agreements, arrangements or understandings, (iv)
to the extent not covered by clauses (ii) and (iii), any disclosures that would
be required pursuant to Item 5 or Item 6 of Schedule 13D if the requirements
therein were applicable to such stockholder and such beneficial owner and (v) an
undertaking by such stockholder and such beneficial owner to notify the
Corporation in writing of any change in the information called for by clauses
(ii), (iii) and (iv) as of the record date for determining stockholders entitled
to express consent to such action, by notice received by the Secretary not later
than the day following such record date, and thereafter by notice so given and
received within one business day of any change in such
information. The Corporation may require the stockholder requesting a
record date for proposed stockholder action by consent to furnish additional
information to the extent it may reasonably be required to determine the
validity of the request for a record date.
SECTION
2.07 List of Stockholders Entitled to
Vote. The Secretary shall prepare and make, at least ten days before
every meeting of stockholders, a complete list of the stockholders entitled to
vote at the meeting, arranged in alphabetical order, and showing the address of
each stockholder and the number of shares registered in the name of each
stockholder. Such list shall be opened to the examination of any stockholder,
for any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place where the meeting
is to be held. The list shall also be produced and kept at the time and place of
the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
SECTION
2.08 Quorum. Except as otherwise
provided by law or by the Certificate of Incorporation, at any meeting of
stockholders the presence, in person or by proxy, of the holders of a majority
of the shares of stock of the Corporation entitled to vote at the meeting shall
constitute a quorum for, and the votes of the holders of a majority of the
shares so present shall be required for, the transaction of business. If a
quorum is not present at any meeting of the stockholders, the holders of a
majority of the shares of stock present in person or by proxy and entitled to
vote may adjourn the meeting from time to time without notice, other than
announcement at the meeting, until a quorum is present. At any such adjourned
meeting at which a quorum
is present any business may be transacted which might have been transacted at
the meeting as originally called.
4
SECTION
2.09 Adjourned Meeting. Any
meeting of stockholders, including a meeting at which a quorum is not present,
may be adjourned to another time or place by the votes of the holders of a
majority of the shares of stock of the Corporation present in person or by proxy
and entitled to vote. Notice of the adjourned meeting need not be given if the
time and place thereof are announced at the meeting at which the adjournment is
taken, except that if the adjournment is for more than thirty days, or if after
the adjournment a new record date is fixed for the adjourned meeting, a notice
of the adjourned meeting shall be given to each stockholder of record entitled
to vote at the meeting.
SECTION
2.10 Order of Business. The order
of business at all meetings of stockholders shall be as determined by the
chairman of the meeting.
SECTION
2.11 Vote of Stockholders. Except
as otherwise provided by the Certificate of Incorporation, every stockholder of
record, as determined pursuant to Section 2.06 hereof, shall at every
meeting of the stockholders be entitled to one vote in person or by proxy for
each share of stock held by such stockholder on the record date. All elections
of directors shall be by written ballot, but no vote on any other question upon
which a vote of the stockholders may be taken need be by ballot unless the
chairman of the meeting shall so decide or the holders of a majority of the
shares of stock present in person or by proxy and entitled to participate in
such vote shall so demand. In a vote by ballot each ballot shall state the
number of shares voted and the name of the stockholder or proxy voting. Except
as otherwise provided by law, by the Certificate of Incorporation or by Section
3.15 hereof, all elections of directors where the number of nominees exceeds the
number of directors to be elected, i.e., “contested elections,” shall be decided
by the vote of the holders of a plurality of the shares of stock present in
person or by proxy at the meeting and entitled to vote, and all other questions
shall be decided by the vote of the holders of a majority of the shares of stock
present in person or by proxy at the meeting and entitled to vote on the
question, including the election of directors where the number of nominees does
not exceed the number of directors to be elected, i.e., an “uncontested
election.” Incumbent directors running for reelection in an uncontested election
who fail to receive the required vote shall, to the extent permitted by law,
resign within 120 days after the election.
SECTION
2.12 Proxies. Each stockholder
entitled to vote at a meeting of stockholders or to express consent or dissent
to corporate action in writing without a meeting may authorize another person or
persons to act for him by proxy, but no such proxy shall be voted or acted upon
after three years from its date unless the proxy provides for a longer period. A
proxy acting for any stockholder shall be duly appointed by an instrument in
writing subscribed by such stockholder.
SECTION
2.13 Notice of Stockholder
Business.
(a) Annual Meetings of
Stockholders.
(1) The
proposal of business (including the nomination of any person for election or
reelection as a director of the Corporation) to be considered by the
stockholders may be made at an annual meeting of stockholders (A) pursuant to
the Corporation’s notice of meeting, (B) by or at the direction of the Board of
Directors or (C) by any stockholder of the Corporation who was a
5
stockholder
of record at the time of giving notice provided for in these By-Laws, who is
entitled to vote at the meeting and who complies with the notice procedures set
forth in these By-Laws.
(2) For
business (including the nomination of any person for election or reelection as a
director of the Corporation) to be properly brought before an annual meeting by
a stockholder pursuant to Section 2.13(a)(1)(C) of these By-Laws, the
stockholder must have given timely notice thereof in writing to the Secretary
that complies in form and substance with the requirements of these By-Laws and
such business must otherwise be a proper matter for stockholder
action. To be timely, a stockholder’s notice (including the
nomination of any person for election or reelection as a director of the
Corporation) shall be delivered to the Secretary at the principal executive
offices of the Corporation not later than the close of business on the 90th day
nor earlier than the close of business on the 120th day prior to the first
anniversary of the immediately preceding annual meeting; provided, however, that
in the event that the date of the annual meeting is more than 30 days before or
more than 60 days after such anniversary date, to be timely, notice by the
stockholder must be so delivered not earlier than the close of business on the
120th day prior to such annual meeting and not later than the close of business
on the later of the 90th day prior to such annual meeting and the 10th day
following the day on which public announcement of the date of such meeting is
first made. In no event shall the public announcement of an adjournment or
postponement of an annual meeting or of a new record date for an annual meeting
commence a new time period for the giving of a stockholder’s notice as described
above. Such stockholder’s notice shall be valid and effective only if it is
timely given (as set forth above) and only if it sets forth (A) as to any
business (including the nomination of any person for election or reelection as a
director of the Corporation, in which case the questionnaire, representation and
agreement required by Section 2.13(d) of these By-Laws must also be delivered
along with and at the same time as such stockholder’s notice) that the
stockholder proposes to bring before the meeting, a brief description of such
business, the reasons for conducting such business at the meeting, any material
interest in such business of such stockholder and the beneficial owner, if any,
on whose behalf the proposal to conduct such business is made and, if such
business includes a proposal to amend either the Certificate of Incorporation or
these By-Laws, the text of the proposed amendment; and (B) as to the stockholder
giving the notice and the beneficial owner, if any, on whose behalf the proposal
to conduct such business (including the nomination of any person for election or
reelection as a director of the Corporation) is made, (i) the name and address
of such stockholder, as they appear on the Corporation’s books, and of such
beneficial owner, (ii) the class and number of shares of the Corporation which
are owned beneficially and of record by such stockholder and such beneficial
owner, (iii) any agreements, arrangements or understandings entered into by such
stockholder, such beneficial owner or their respective affiliates with respect
to equity securities of the Corporation, including any put or call arrangements,
derivative securities, short positions, borrowed shares or swap or similar
arrangements, specifying in each case the effect of such agreements,
arrangements or understandings on any voting or economic rights of equity
securities of the Corporation, in each case as of the date of the notice and in
each case describing any changes in voting or economic rights which may arise
pursuant to the terms of such agreements, arrangements or understandings, (iv)
to the extent not covered by clauses (ii) and (iii), any disclosures that would
be required pursuant to Item 5 or Item 6 of Schedule 13D if the requirements
therein were applicable to such stockholder and such beneficial owner and (v) an
undertaking by such stockholder and such beneficial owner to notify the
Corporation in writing of any change in the
6
information
called for by clauses (ii), (iii) and (iv) as of the record date for such
meeting, by notice received by the Secretary not later than the 10th day
following such record date, and thereafter by notice so given and received
within two business days of any change in such information and, in any event, as
of the close of business on the day preceding the meeting date. For the
avoidance of doubt, even if the Corporation has already included the election or
reelection of directors as an item on the agenda for the annual meeting or
already included any other subject matter as an item on the agenda for the
annual meeting, a stockholder shall not be permitted to nominate any person for
election or reelection as a director of the Corporation at such annual meeting
or place any proposal relating to such subject matter on the agenda for such
annual meeting, unless, in each case, such stockholder complies with the advance
notice requirements set forth in this Section 2.13(a)(2), including as to the
timing and substance of such notice requirements.
(b) Special Meetings of
Stockholders. Only such business shall be conducted at a special meeting
of stockholders as shall have been brought before the meeting pursuant to the
Corporation’s notice of meeting as provided for in Section 2.04 hereof. The
nomination of any person for election or reelection as a director of the
Corporation may be made at a special meeting of stockholders at which directors
are to be elected pursuant to the Corporation’s notice of meeting (1) by or at
the direction of the Board of Directors or (2) by any stockholder of the
Corporation who is a stockholder of record at the time of giving notice provided
for in this Section 2.13(b), who shall be entitled to vote at the meeting and
who complies with the notice provisions set forth in this Section 2.13(b),
including the provisions as to timing of the delivery of the notice of any
nomination of a director for election or reelection and required information. In
the event the Corporation calls a special meeting of stockholders for the
purpose of electing or reelecting one or more directors to the Board of
Directors, any such stockholder may nominate a person or persons (as the case
may be), for election to such position(s) as specified in the Corporation’s
notice of meeting, if the stockholder delivers the notice required by Section
2.13(a)(2) of these By-Laws along with and at the same time as the
questionnaire, representation and agreement required by Section 2.13(d) of these
By-Laws to the Secretary at the principal executive offices of the Corporation
not earlier than the close of business on the 120th day prior to such special
meeting and not later than the close of business on the later of the 90th day
prior to such special meeting or the 10th day following the day on which public
announcement is first made of the date of the special meeting and of the
nominees proposed by the Board of Directors to be elected at such meeting. In no
event shall the public announcement of an adjournment or postponement of a
special meeting or of a new record date for a special meeting commence a new
time period for the giving of a stockholder’s notice as described
above.
(c) General.
(1) Only
such persons who are nominated for election or reelection as a director of the
Corporation in accordance with the procedures set forth in these By-Laws
(including, in the case of nominations by stockholders, the advance notice
requirements set forth in Sections 2.02, 2.06(b), 2.13(a) and 2.13(b) of these
By-Laws, as applicable, and the provision of the questionnaire, representation
and agreement required by Section 2.13(d) of these By-Laws) shall be eligible to
serve as directors and only such business shall be conducted at a meeting of
stockholders as shall have been brought before the meeting in accordance with
the procedures set
7
forth in
these By-Laws (including, in the case of proposals by stockholders, the advance
notice requirements set forth in Sections 2.02, 2.06(b) and 2.13(a) of these
By-Laws, as applicable). Except as otherwise provided by law, the presiding
officer of the meeting shall have the power and duty to determine whether any
business proposed to be brought before the meeting was proposed in accordance
with the procedures set forth in these By-Laws and, if any proposed business is
not in compliance with these By-Laws, to declare that such defective proposal
shall be disregarded.
(2) For
purposes of these By-Laws, “public announcement” shall mean disclosure in a
press release reported by the Dow Xxxxx News Service, Associated Press or
comparable national news service or in a document publicly filed by the
Corporation with the Securities and Exchange Commission pursuant to Section 13,
14 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”).
(3)
Notwithstanding the foregoing provisions of these By-Laws, a stockholder shall
also comply with all applicable requirements of the Exchange Act and the rules
and regulations promulgated thereunder with respect to the matters set forth in
these By-Laws. Nothing in these By-Laws shall be deemed to affect any rights (i)
of stockholders to request inclusion of proposals in the Corporation’s proxy
statement pursuant to Rule 14a-8 promulgated under the Exchange Act, including,
without limiting the generality of the foregoing, the time limits for notice of
such proposals as provided under Rule 14a-8 promulgated under the Exchange Act
or (ii) of the holders of any series of preferred stock to elect directors under
specified circumstances.
(d) Submission of Questionnaire,
Representation and Agreement. To be eligible to be a nominee for election
or reelection as a director of the Corporation (whether at an annual meeting, a
special meeting or by action by written consent in lieu of a meeting), a person
must deliver (in accordance with the time periods prescribed for delivery of
notice under Sections 2.13(a) and (b) of these By-Laws, as applicable, or as
part of the notice required by Sections 2.02 and 2.06(b)) to the Secretary a
completed written questionnaire with respect to the background and qualification
of such person and any other person or entity that such person may represent
(which questionnaire shall be provided by the Secretary) and a written
representation and agreement (in the form provided by the Secretary) that such
person (A) has no agreement or understanding with any person or entity as to how
such person will act or vote on any issue or question as a director, (B) is not
a party to any agreement or understanding with any person or entity other than
the Corporation with respect to compensation, reimbursement or indemnification
in connection with service or action as a director, (C) will comply with the
director stock ownership guidelines of the Corporation and (D) in such person’s
individual capacity and on behalf of any person or entity
for whom such person may be a representative, has complied and will comply with
all applicable corporate governance, conflicts, confidentiality and stock
ownership and trading policies of the Corporation. In addition, a person shall
not be eligible to be a nominee for election as a director unless that person
meets the requirements for service as a director prescribed in the Corporation’s
Corporate Governance Guidelines.
8
ARTICLE
3
Board of
Directors
SECTION
3.01 Number. The number of
directors which shall constitute the whole Board shall be fixed from time to
time by the stockholders or the Board of Directors. Such number shall be not
less than three. Directors need not be stockholders.
SECTION
3.02 Election and Term of Office.
Except as otherwise provided by law or by this Article 3 or by the
Certificate of Incorporation, directors shall be elected at the annual meeting
of stockholders and shall hold office until the next annual meeting of
stockholders and until their successors are elected and qualify, or until they
sooner die, resign or are removed as hereinafter provided.
SECTION
3.03 General Powers. The business,
properties and affairs of the Corporation shall be managed by the Board of
Directors.
SECTION
3.04 Place of Meetings. Meetings
of the Board of Directors may be held at any place, within or without the State
of Delaware.
SECTION
3.05 Regular Meetings. Regular
meetings of the Board of Directors shall be held at such time as may be
determined by resolution of the Board of Directors, and no notice shall be
required for any regular meeting except as otherwise provided by
Section 3.07 hereof.
SECTION
3.06 Special Meetings. Special
meetings of the Board of Directors may be called at any time by the Chairman of
the Board, the Co-Chairman of the Board, or the Chief Executive Officer, and
shall be called by the Chairman of the Board, the Co-Chairman of the Board or
the Secretary upon the request in writing of a majority of the directors stating
the purpose or purposes of such meeting. Notices of special meetings shall be
mailed to each director at his residence or usual place of business, or shall be
sent to him at either of such places by telegraph or messenger or be
communicated to him personally or by telephone, at least four days before the
day on which the meeting is to be held. Notice of any meeting of the Board of
Directors need not be given to any director if he shall be present at the
meeting, unless his presence is solely for the purpose of asserting an objection
that the calling or holding of such meeting is invalid by reason of some
provision of law, the Certificate of Incorporation or these By-Laws. Any and all
business transacted at any meeting of the Board of Directors, except business
specified in the first sentence of Section 3.07 hereof, shall be fully
effective without any notice of such meeting having been given, if all the
members shall be present and participating therein.
SECTION
3.07 Business that may be Transacted.
No action may be taken at any regular or special meeting of the Board of
Directors to amend or repeal any provision of these By-Laws, or to change the
number of directors which shall constitute the whole Board, unless notice of the
proposed amendment, discontinuance, repeal or change is set forth in the notice
of such meeting, whether or not notice of such meeting is otherwise required.
Except as otherwise
9
provided by law or by the Certificate of Incorporation, any and
all other business may be transacted at any regular or special meeting of the
Board of Directors, whether or not enumerated in the notice of the meeting when
notice is required.
SECTION
3.08 Organization. The Board shall
designate a Chairman of the Board and may designate a Co-Chairman of the
Board. The board may designate other titles and responsibilities for
members of the board in its discretion unless otherwise prohibited by law. The
Chairman of the Board or, in his absence, the Co-Chairman of the Board shall
preside at all meetings of the Board of Directors at which he is
present. If the Chairman of the Board and the Co-Chairman of the
Board shall be absent from any meeting of the Board of Directors, such meeting
shall be presided over by such other member of the Board of Directors as
specified by the members of the Board of Directors present. Except as
otherwise provided by the Certificate of Incorporation, law or the governance
guidelines as may be adopted from time to time by the Board of Directors, the
roles of the Chairman of the Board or any other director and that of any officer
position (including that of Chief Executive Officer) may be combined or
separate.
SECTION
3.09 Quorum and Adjournment. At
any meeting of the Board of Directors the presence of a majority of the whole
Board, but not less than two directors, shall constitute a quorum for the
transaction of business. Except as otherwise provided by law, by the Certificate
of Incorporation or by these By-Laws, the vote of the majority of the directors
present at any meeting at which a quorum is present shall be the act of the
Board of Directors. If a quorum is not present at any meeting of the Board of
Directors, the directors present may adjourn the meeting from time to time until
a quorum is present. The Secretary shall give notice of each such adjournment to
the absent directors.
SECTION
3.10 Voting. On any question on
which the Board of Directors shall vote, the names of those voting and their
votes shall be entered in the minutes of the meeting when any member of the
Board so requests.
SECTION
3.11 Compensation. Unless
otherwise restricted by the Certificate of Incorporation or law, the Board of
Directors shall have the authority to fix compensation of directors, including
annual retainers, meeting fees and equity compensation awards, in a manner
consistent with the governance guidelines as the Board of Directors may adopt
from time to time. Nothing herein contained shall preclude any director from
serving the Corporation in any other capacity and receiving compensation
therefor.
SECTION
3.12 Action Without a Meeting. Any
action required or permitted to be taken at any meeting of the Board of
Directors or of any committee thereof may be taken without a meeting, if all
members of the Board or such committee, as the case may be, consent thereto in
writing and such writing or writings are filed with the minutes of proceedings
of the Board or the committee.
SECTION
3.13 Resignations. Any director
may resign at any time upon written notice to the Board of Directors, the
Chairman of the Board, the Co-Chairman of the Board or to the Secretary of the
Corporation. Such resignation shall take effect at the time specified therein
10
or, if no
such time is specified, upon the receipt thereof by the addressee. The
acceptance of any such resignation shall not be necessary to make it
effective.
SECTION
3.14 Removal of Directors. Any
director may be removed at any time, either for or without cause, by action of
the holders of record of a majority of the outstanding shares of voting capital
stock of the Corporation. For proper cause, a director may also be removed at
any time by the affirmative vote of at least two-thirds of the whole Board of
Directors.
SECTION
3.15 Filling of Vacancies.
Vacancies created by death, resignation, removal or disqualification and
newly created directorships resulting from any increase in the authorized number
of directors may be filled by the affirmative vote of a majority of the
directors remaining in office, although less than a quorum, or by a sole
remaining director, or by the affirmative vote of the holders of a majority of
the stock of the Corporation entitled to vote and present and voting at any
meeting of the stockholders at which a quorum is present. Each director so
chosen shall hold office until the next annual meeting of stockholders and until
his successor is elected and qualified or until his earlier resignation or
removal. If one or more directors shall resign from the Board, effective at a
future date, a majority of the directors then in office, including those who
have so resigned, shall have power to fill such vacancy or vacancies, the vote
thereon to take effect when such resignation or resignations shall become
effective, and each director so chosen shall hold office as provided in this
section in the filling of other vacancies.
ARTICLE
4
Committees
SECTION
4.01 Appointment and Powers. The
Board of Directors may, by resolution passed by a majority of the whole Board,
designate one or more committees, each committee to consist of two or more of
the directors of the Corporation. The Board may designate one or more directors
as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. Any such committee, to the
extent provided in such resolution, shall have and may exercise the powers of
the Board of Directors in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be affixed to all
papers which may require it; provided, however, that no committee shall have or
may exercise any power which, by law or by any provision of the Certificate of
Incorporation or these By-Laws, can be exercised only by the affirmative vote of
a majority of the whole board. 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.
SECTION
4.02 Procedural Rules. The Board
of Directors may, by resolution passed by a majority of the whole Board, specify
rules for the conduct of any committee’s proceedings. In the absence or in
amplification of any such rules thus specified by the Board, each committee may
adopt its own procedural rules.
11
SECTION
4.03 Minutes. Each committee shall
keep regular minutes of its proceedings and report the same to the Board of
Directors when required.
SECTION
4.04 Removal. Any director may be
removed from any committee, either for or without cause, by the affirmative vote
of a majority of the whole Board of Directors.
SECTION
4.05 Vacancies. Any vacancy among
the appointed members of any committee may be filled by the affirmative vote of
a majority of the whole Board of Directors.
ARTICLE
5
Officers
SECTION
5.01 Designation. The
Board of Directors at any time and from time to time shall elect the corporate
officers of the Corporation, which may include individuals with such titles,
powers and duties as the Board of Directors shall designate in its discretion,
unless otherwise prohibited by law. Except as otherwise provided by
the Certificate of Incorporation, law or the governance guidelines as may be
adopted from time to time by the Board of Directors, the roles of any member of
the Board of Directors and any officer of the Corporation may be combined or
separate. The designation of a director with a specific role on the
Board with a title, such as Chairman of the Board, Co-Chairman of the Board,
Vice-Chairman of the Board or Presiding Director of the Board, shall not make
such director into an officer of the Corporation unless the Board of Directors
also specifically designates such director’s role and title as that of not only
a director, but also an officer of the Corporation. The officer
titles may include, without limitation, the following titles: Chairman,
Co-Chairman, Vice-Chairman, Chief Executive Officer, President, Chief Operating
Officer, Chief Financial Officer, Vice President (any of whom may be designated
a Group Vice President, Executive Vice President or Senior Vice President),
Secretary, Treasurer, and Controller. The Board of Directors from
time to time may also appoint one or more Vice Presidents (any of whom may be
designated a Staff Vice President), Assistant Vice Presidents, Assistant
Secretaries, Assistant Treasurers, Assistant Controllers and such other
employees and agents as are desired. Unless otherwise provided by a resolution
of the Board of Directors, such appointed employees shall not themselves perform
any corporate management functions and shall not, in such capacities, be deemed
corporate officers. Any officer may hold two or more offices, the duties of
which can be consistently performed by the same person, unless otherwise
forbidden by the Certificate of Incorporation or law.
SECTION
5.02 Terms of Office; Vacancies.
So far as is practicable, all elected officers shall be elected at the
organization meeting of the Board of Directors in each year. All officers shall
hold office at the pleasure of the Board of Directors. If a vacancy shall occur
in any office,
the Board of Directors may elect a successor to fill such vacancy for the
remainder of the term.
SECTION
5.03 Resignations. Any officer may
resign at any time upon written notice to the Board of Directors, the Chairman
of the Board, the Co-Chairman of the Board or the
12
Secretary of the Corporation. Such resignation shall take effect
at the time specified therein or, if no such time is specified, upon the receipt
thereof by the addressee. The acceptance of any resignation shall not be
necessary to make it effective.
SECTION
5.04 Chief Executive
Officer. The Chief Executive Officer or such other officer or
officers as specified by the Board of Directors, subject always to the control
of the Board of Directors, shall see that all orders and resolutions of the
Board of Directors and its committees are carried into effect and have such
other duties as from time to time may be assigned to him by the Board of
Directors.
SECTION
5.05 Vice Presidents and Other Officers.
The Vice Presidents and other officers of the Corporation shall have such
powers and perform such duties as may from time to time be assigned to them by
the Board of Directors or by such other officers designated by the Board of
Directors as having such power to assign.
SECTION
5.06 The Secretary. Unless
otherwise provided by a resolution of the Board of Directors, the Secretary
shall have the following powers and duties. He shall attend to the
giving of notice of all meetings of stockholders and of the Board of Directors
and committees thereof. He shall act as secretary at all meetings of
stockholders and the Board of Directors and of all committees of the Board of
Directors that shall designate him to so serve, and keep minutes of all
proceedings at such meetings, as well as of the proceedings at all meetings of
such other committees of the Board of Directors as shall designate him to so
serve. He shall have charge of the corporate seal and shall have authority to
attest any and all instruments or writings to which the same may be affixed. He
shall keep and account for the stock ledger and all other books, documents,
papers and records of the Corporation, except those for which some other officer
or agent is properly accountable, and shall perform such other duties as
generally pertain to the office of secretary of a corporation. The Assistant
Secretaries in the order of their seniority shall, in the absence or disability
of the Secretary, perform the duties and exercise the powers of that office, and
shall perform such other duties as the Board of Directors may
prescribe.
SECTION
5.07 The Treasurer. Unless
otherwise provided by a resolution of the Board of Directors, the Treasurer
shall have the following powers and duties. He shall attend to the
care and custody of all the moneys, funds and securities of the Corporation and
shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Corporation and shall deposit all moneys, and other valuable
effects in the name and to the credit of the Corporation, in such depositories
as may be designated by the Board of Directors. He shall disburse the funds of
the Corporation as may be ordered by the Board of Directors, taking proper
vouchers for such disbursements, and shall render to the Chairman of the Board,
the Chief Executive Officer, and the Board of Directors, at regular meetings of
the Board of Directors, or whenever they may require it, an account of all his
transactions as Treasurer and of the financial condition of the Corporation. He
shall give the Corporation a bond if required by the Board of Directors, in such
sum and with such surety or sureties as shall be satisfactory to the Board of
Directors, for the faithful performance of the duties of his office, and for the
restoration to the Corporation, in case of his death, resignation, retirement or
removal from office, of all books, papers, vouchers, money and other property of
whatever kind in his possession or under his control belonging to the
Corporation. The Assistant Treasurers in the order of their seniority
13
shall, in
the absence or disability of the Treasurer, perform the duties and exercise the
powers of that office, and shall perform such other duties as the Board of
Directors may prescribe.
SECTION
5.08 Additional Powers and Duties.
In addition to the duties and powers expressly enumerated herein, the
several officers of the Corporation shall perform such other duties and exercise
such further powers as the Board of Directors may from time to time determine,
or as may be assigned to them by any superior officer.
SECTION
5.09 Compensation. The
compensation of all officers of the Corporation shall be fixed, from time to
time, by or with the approval of the Board of Directors. The compensation of all
other employees and agents of the Corporation shall be fixed by the Board of
Directors or by such other person or persons as shall be designated by the Board
of Directors.
ARTICLE
6
Indemnification
SECTION
6.01 Actions other than those by or in
the right of the Corporation. The Corporation shall indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the
Corporation) by reason of the fact that he is or was a director, officer,
employee or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys’ fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he reasonably believed to be in or
not opposed to the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his conduct
was unlawful.
SECTION
6.02 Actions by or in the right of the
Corporation. The Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that he is or was a director,
officer, employee or agent of the Corporation,
or is or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys’ fees) actually and
reasonably incurred by him in connection with the defense or settlement of such
action or suit if he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the Corporation.
14
The foregoing sentence to the contrary notwithstanding, no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable for negligence or
misconduct in the performance of his duty to the Corporation unless and only to
the extent that the Court of Chancery or the court in which such action or suit
was brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the Court of
Chancery or such other court shall deem proper.
SECTION
6.03 Indemnification against Expenses.
To the extent that a director, officer, employee or agent of the
Corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in Sections 6.01 or 6.02 hereof, or
in defense of any claim, issue or matter therein, he shall be indemnified
against expenses (including attorneys’ fees) actually and reasonably incurred by
him in connection therewith.
SECTION
6.04 Authorization. Any
indemnification under Section 6.01 or Section 6.02 hereof (unless
ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the present or former
director, officer, employee or agent is proper in the circumstances because he
has met the applicable standard of conduct set forth in Sections 6.01 and 6.02,
and that he has reasonably cooperated with the Corporation in the conduct of
such action, suit or proceeding. Such determination shall be made (a) by a
majority vote of the directors who are not parties to such action, suit or
proceeding, even though less than a quorum, or (b) by a committee of such
directors designated by majority vote of such directors, even though less than a
quorum, or (c) if there are no such directors, or if such directors so direct,
by independent legal counsel in a written opinion, or (d) by the
stockholders.
SECTION
6.05 Payment of Expenses in Advance of
Final Disposition. Expenses (including attorneys’ fees) incurred by a
present or former director, officer, employee or agent in defending any civil,
criminal, administrative or investigative action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit
or proceeding, if the following conditions are met: (a) receipt of an
undertaking by or on behalf of such present or former director, officer,
employee or agent to repay such amount if it shall ultimately be determined that
such person is not entitled to be indemnified by the Corporation as authorized
in this Article 6 and (b) (1) in the case of a person who is a director or
officer at the time of such authorization, such advancement of expenses
(including attorneys’ fees) is authorized (i) by a majority vote of the
directors who are not parties to such action, suit or proceeding, even though
less than a quorum, or (ii) by a committee of such directors designated by
majority vote of such directors, even though less than a quorum, or (iii) if
there are no such directors, or if such directors so direct, by independent
legal counsel in a written opinion, or (iv) by the stockholders; or (2) in the
case of a person who is a former director or officer or a present or former
employee or agent,
such expenses (including attorneys’ fees) are so paid upon such terms and
conditions, if any, as the Corporation deems appropriate.
SECTION
6.06 Non-Exclusivity. The
indemnification provided by this Article 6 shall not be deemed exclusive of
any other rights to which those indemnified may be entitled under any by-law,
agreement, vote of stockholders or disinterested directors or otherwise, both as
to
15
action in his official capacity and as to action in another
capacity while holding such office, and shall continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a person.
SECTION
6.07 Application. The provisions
of this Article 6 shall not be construed to authorize indemnification in
any case or for any liability or expense where such indemnification would not be
lawful. They shall be applicable to claims, actions, suits and proceedings made
or commenced after the adoption hereof, whether arising from acts or omissions
to act occurring before or after the date of such adoption. If a person meets
the requirements of this Article 6 with respect to some matters in a claim,
action, suit or proceeding but not with respect to others, he shall be entitled
to indemnification as to the former.
ARTICLE
7
Stock
Certificates
SECTION
7.01 Issuance of Certificates.
Unless otherwise forbidden by law, every holder of 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 Co-Chairman of the Board, the
Treasurer, an Assistant Treasurer, the Secretary, an Assistant Secretary or such
other officer specified by the Board of Directors, certifying the number of
shares owned by him in the Corporation. If such certificate is
countersigned (1) by a transfer agent other than the Corporation or its
employee, or (2) by a registrar other than the Corporation or its employee,
any other signature on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been
placed upon a certificate shall have ceased to be such officer, transfer agent
or registrar before such certificate is issued, it may be issued by the
Corporation with the same effect as if he were such officer, transfer agent or
registrar at the date of issue.
SECTION
7.02 Form of Certificates. The
certificates representing each class of the capital stock of the Corporation
shall be in such form as shall be approved by the Board of Directors. They shall
bear on their face appropriate legends conspicuously calling attention to the
designations, preferences and rights, and the qualifications, limitations or
restrictions thereof, of the class of stock in question, and to the restrictions
on transfer and registration set forth in the Certificate of Incorporation. If a
full statement of such designations, preferences, rights, qualifications,
limitations and restrictions is not printed on the face or back of each
certificate, the Corporation shall (and each certificate shall state that the
Corporation will) furnish a copy of such full statement to any stockholder upon
request and without charge. The acceptance of any stock
certificate shall constitute assent to all applicable provisions of the
Certificate of Incorporation and of these By-Laws whether or not the stockholder
thus accepting the certificate shall have requested a copy of the full statement
referred to in the preceding sentence.
SECTION
7.03 Lost, Stolen or Destroyed
Certificates. The Board of Directors, or any officer or officers
thereunto duly authorized by the Board of Directors, may authorize the
16
issuance of a new certificate of stock in the place of any
certificate theretofore issued by the Corporation, alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of such loss, theft or
destruction by the owner thereof or his legal representative. The Board of
Directors or the officer or officers thereunto duly authorized by the board may,
in its, his or their discretion and as a condition precedent to the issuance of
such new certificate, require such owner or legal representative to give the
Corporation a bond sufficient to indemnify it against any claim that may be made
against it on account of the alleged loss, theft or destruction of any such
certificate or the issuance of such new certificate.
ARTICLE
8
Transfers
of Stock
SECTION
8.01 Registration of Transfers.
Except as otherwise provided (and subject to the limitations of ownership
set forth) in the Certificate of Incorporation, shares of the capital stock of
the Corporation shall be transferable on the books of the Corporation by the
holder thereof in person or by his duly authorized attorney, upon surrender to
the Corporation or its transfer agent of the duly endorsed certificate or
certificates for such shares together with (a) stamps evidencing payment of
any applicable stock transfer tax or a cash payment sufficient to reimburse the
Corporation for payment of such tax, and (b) such guaranty or proof of the
authenticity of the endorsement as the Corporation or its transfer agent may
reasonably require.
SECTION
8.02 Transfer Agents and Registrars.
The Board of Directors may, in its discretion, appoint banks or trust
companies in such city or cities as the Board may deem advisable, from time to
time, to act as transfer agents and registrars of any class or classes of the
capital stock of the Corporation. Upon such appointments being made, no stock
certificate shall be valid until countersigned by one of such transfer agents
and registered by one of such registrars.
ARTICLE
9
Delegation
of Authority
SECTION
9.01 Officers’ Duties. In the
event of the absence or disability of any officer of the Corporation for which a
substitution is not prescribed in these By-Laws, or for any other reason it may
deem sufficient, the Board of Directors may by the affirmative vote of a
majority
of the whole Board delegate all or any of the powers and duties of such officer
for the time being to any other officer or to any director.
SECTION
9.02 Negotiable Instruments. All
bills, notes, checks or other instruments for the payment of money shall be
signed or countersigned by such officers or agents and in such manner as, from
time to time, may be prescribed by resolution (whether general or special) of
the
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Board of Directors, or as may be prescribed by any officer or
officers thereunto duly authorized by the Board of Directors.
SECTION
9.03 Voting Upon Stocks. Unless
otherwise ordered by the Board of Directors, the Chief Executive Officer or such
other officer specified by the Board of Directors or the Chief Executive Officer
shall have full power and authority on behalf of the Corporation to attend and
to act and to vote at any meetings of stockholders of any corporation in which
the Corporation may hold stock, and at any such meeting shall possess and may
exercise any and all rights and powers incident to the ownership of such stock,
and which, as the owner thereof, the Corporation might have possessed and
exercised if present. The Board of Directors, by resolution, from time to time,
may confer like powers upon any other person or persons.
SECTION
9.04 Attorneys. The Board of
Directors may, from time to time, appoint one or more attorneys-in-fact to act
for and in representation of the Corporation, either generally or specially,
judicially or extra-judicially, and may delegate to any such attorney or
attorneys-in-fact all or any powers which, in the judgment of the board, may be
necessary, advisable, convenient or suitable for exercise in any country or
jurisdiction in the administration or management of the business of the
Corporation, or the defense or enforcement of its rights, even though such
powers be herein provided or directed to be exercised by a designated officer of
the Corporation, or by the Board of Directors. The act of the Board of Directors
in conferring any such powers upon, or delegating the same to, any
attorney-in-fact shall be conclusive evidence in favor of any third person of
the right of the Board of Directors so to confer or delegate such powers; and
the exercise by any attorney-in-fact of any powers so conferred or delegated
shall in all respects be binding upon the Corporation.
ARTICLE
10
Miscellaneous
SECTION
10.01 Seal. The Board of Directors
shall provide a suitable seal, containing the name of the Corporation, the year
of its organization and the words “Corporate Seal, Delaware,” which seal shall
be in the custody of the Secretary. If and when so directed by the Board of
Directors a duplicate of the seal may be kept and be used by the Treasurer or by
an Assistant Secretary or Assistant Treasurer.
SECTION
10.02 Fiscal Year. The fiscal year
of the Corporation shall be the calendar year.
SECTION
10.03 Inspection of Books. The
Board of Directors shall determine from time to time whether, when and under
what conditions and regulations the accounts and books of the Corporation
(except such as may by statute be specifically open to inspection) or any of
them shall be open to the inspection of the stockholders, and the stockholders’
rights in this respect are and shall be restricted and limited
accordingly.
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SECTION
10.04 Registered Stockholders. The
Corporation shall be entitled to treat the holder of record of any share or
shares of stock as the holder in fact thereof, and accordingly shall not be
bound to recognize any equitable or other claim to or interest in such share on
the part of any other person, whether or not it shall have express or other
notice thereof, save as expressly provided by the law of Delaware.
SECTION
10.05 Waiver of Notice. Whenever
notice is required to be given under any provision of the General Corporation
Law of Delaware, the Certificate of Incorporation or these By-Laws, a written
waiver thereof signed by the person or persons entitled to notice, whether
before or after the time stated therein, shall be deemed equivalent to notice.
Attendance of a person at a meeting of stockholders shall constitute a waiver of
notice of such meeting, except as otherwise provided by law. Neither the
business to be transacted at nor the purpose of any regular or special meeting
of the stockholders or the Board of Directors, except business specified in the
first sentence of Section 3.07 or in Section 10.06 of these By-Laws,
need be specified in any written waiver of notice.
SECTION
10.06 Amendment. Any provision of
these By-Laws may be altered or repealed at any regular or special meeting of
the stockholders or the Board of Directors if notice of the proposed alteration
or repeal is set forth in the notice of such meeting, whether or not notice of
such meeting is otherwise required.
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