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Exhibit 3.2
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THE MONY GROUP INC.
AMENDED AND RESTATED BY-LAWS
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THE MONY GROUP INC.
AMENDED AND RESTATED BY-LAWS
TABLE OF CONTENTS
SECTION PAGE
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Article I STOCKHOLDERS ...................................................................1
Section 1.01. Annual Meeting ........................................................1
Section 1.02. Special Meetings ......................................................1
Section 1.03. Notice of Meetings; Waiver ............................................1
Section 1.04. Quorum ................................................................2
Section 1.05. Voting ................................................................2
Section 1.06. Voting by Ballot ......................................................2
Section 1.07. Adjournment ...........................................................3
Section 1.08. Proxies ...............................................................3
Section 1.09. Organization; Procedure ...............................................3
Section 1.10. Advance Notice of Stockholder Proposals and Stockholder Nominations
of Directors ..........................................................3
Article II BOARD OF DIRECTORS.............................................................5
Section 2.01. General Powers ........................................................5
Section 2.02. Number and Term of Office .............................................5
Section 2.03. Annual and Regular Meetings ...........................................5
Section 2.04. Special Meetings; Notice ..............................................6
Section 2.05. Quorum; Voting ........................................................6
Section 2.06. Adjournment ...........................................................6
Section 2.07. Action Without a Meeting ..............................................7
Section 2.08. Regulations; Manner of Acting .........................................7
Section 2.09. Action by Telephonic Communications ...................................7
Section 2.10. Resignations ..........................................................7
Section 2.11. Vacancies and Newly Created Directorships .............................7
Section 2.12. Compensation ..........................................................7
Section 2.13. Reliance on Accounts and Reports, etc .................................8
Article III EXECUTIVE COMMITTEE AND OTHER COMMITTEES......................................8
Section 3.01. How Constituted .......................................................8
Section 3.02. Powers ................................................................8
Section 3.03. Proceedings ...........................................................8
Section 3.04. Quorum and Manner of Acting ...........................................9
Section 3.05. Action by Telephonic Communications ...................................9
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Section 3.06. Resignations ..........................................................9
Section 3.07. Removal ...............................................................9
Section 3.08. Vacancies .............................................................9
Article IV OFFICERS.......................................................................9
Section 4.01. Number ................................................................9
Section 4.02. Election .............................................................10
Section 4.03. Removal and Resignation; Vacancies ...................................10
Section 4.04. Authority and Duties of Officers .....................................10
Section 4.05. Chairman of the Board ................................................10
Section 4.06. Vice-Chairman of the Board ...........................................10
Section 4.07. President ............................................................11
Section 4.08. Chief Executive Officer ..............................................11
Section 4.09. The Secretary ........................................................11
Section 4.10. The Treasurer ........................................................12
Section 4.11. Additional Officers ..................................................12
Article V CAPITAL STOCK..................................................................13
Section 5.01. Certificates of Stock; Uncertificated Shares .........................13
Section 5.02. Signatures; Facsimile ................................................13
Section 5.03. Lost, Stolen or Destroyed Certificates ...............................13
Section 5.04. Transfer of Stock ....................................................13
Section 5.05. Record Date ..........................................................14
Section 5.06. Registered Stockholders ..............................................14
Section 5.07. Transfer Agent and Registrar .........................................14
Article VI INDEMNIFICATION...............................................................15
Section 6.01. Nature of Indemnity ..................................................15
Section 6.02. Successful Defense ...................................................15
Section 6.03. Determination That Indemnification Is Proper .........................16
Section 6.04. Advance Payment of Expenses ..........................................16
Section 6.05. Procedure for Indemnification of Directors and Officers ..............16
Section 6.06. Survival; Preservation of Other Rights ...............................17
Section 6.07. Insurance ............................................................17
Section 6.08. Severability .........................................................17
Article VII GENERAL PROVISIONS...........................................................18
Section 7.01. Dividends ............................................................18
Section 7.02. Reserves .............................................................18
Section 7.03. Execution of Instruments .............................................18
Section 7.04. Corporate Indebtedness ...............................................18
Section 7.05. Deposits .............................................................19
Section 7.06. Checks ...............................................................19
Section 7.07. Sale, Transfer, etc., of Securities ..................................19
Section 7.08. Voting as Stockholder ................................................19
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Section 7.09. Fiscal Year ..........................................................19
Section 7.10. Seal .................................................................20
Section 7.11. Books and Records ....................................................20
Article VIII AMENDMENT OF BY-LAWS........................................................20
Section 8.01. Amendment ............................................................20
Article IX CONSTRUCTION..................................................................20
Section 9.01. Construction .........................................................20
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THE MONY GROUP INC.
AMENDED AND RESTATED BY-LAWS
ARTICLE I
STOCKHOLDERS
Section 1.01. Annual Meeting. An annual meeting of the stockholders,
for the election of directors and for the transaction of such other business as
may properly come before the meeting, shall be held at such place, on such date
and at such time as the Board of Directors shall each year fix, which date shall
be within thirteen months subsequent to the date of the last annual meeting of
stockholders and shall be set forth in the notice and waiver of notice of the
meeting.
To be properly brought before an annual meeting, business
must be (a) specified in the notice of meeting (or any supplement thereto) given
by or at the direction of the Board of Directors, (b) otherwise properly brought
before the meeting by or at the direction of the Board of Directors or (c)
otherwise properly brought before the meeting by a stockholder of the
Corporation who was a stockholder of record at the time of giving of notice
provided for in Section 1.10, who is entitled to vote at the meeting and who
complied with the notice procedures set forth in Section 1.10. The Chairman of
the meeting shall, if the facts warrant, determine and declare to the meeting
that business was not properly brought before the meeting in accordance with the
provisions of this Section 1.01, and if he should so determine, the Chairman
shall declare to the meeting that any such business not properly brought before
the meeting shall not be transacted.
Section 1.02. Special Meetings. Special meetings of the stockholders,
for any purpose or purposes, may be called at any time by the Chairman of the
Board or the President and shall be called by the Chairman, the President or the
Secretary at the request in writing of a majority of the members of the Board of
Directors. No business other than that included in the notice of the special
meeting shall be acted upon at such meeting. No stockholder may call a special
meeting of the stockholders.
Section 1.03. Notice of Meetings; Waiver. The Secretary or any
Assistant Secretary shall cause written notice of the place, date and hour of
each meeting of the stockholders and, in the case of a special meeting, the
purpose or purposes for which such meeting is called, to be given personally or
by mail, not less than 10 nor more than 60 days prior to the meeting, to each
stockholder of record entitled to vote at such meeting. If such notice is
mailed, it shall be deemed to have been given to a stockholder when deposited in
the United States mail, postage prepaid, or delivered to a nationally recognized
overnight delivery service for overnight delivery, in each case directed to the
stockholder at his or her address as it appears on the record of stockholders of
the Corporation, or, if he or she shall have filed with the Secretary a written
request that notices to him or her be mailed to some other address, then
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directed to him or her at such other address. Such further notice shall be given
as may be required by law.
No notice of any meeting of stockholders need be given to any
stockholder who submits a signed waiver of notice, whether before or after the
meeting. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the stockholders need be specified in a written
waiver of notice. The attendance of any stockholder at a meeting of stockholders
in person or by proxy shall constitute a waiver of notice of such meeting,
except when the stockholder attends a meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any business
on the ground that the meeting is not lawfully called or convened.
Section 1.04. Quorum. A stockholders' meeting duly called shall not
be organized for the transaction of business unless a quorum is present. Except
as otherwise expressly provided by law, the Amended and Restated Certificate of
Incorporation, these By-laws, as amended (the "By-laws"), or any certificate
filed under Section 151(g) of the Delaware General Corporation Law (the "DGCL")
(or its successor statute as in effect from time to time) or in instances of a
separate class vote, the presence in person or by proxy of holders of record
entitled to exercise at least a majority of the voting power of the Corporation
shall constitute a quorum for such meeting. The stockholders present at a duly
organized meeting can continue to do business until adjournment, notwithstanding
the withdrawal of enough stockholders to leave less than a quorum. If a meeting
cannot be organized because a quorum has not attended, stockholders representing
a majority of the voting power of the stockholders present may adjourn or, in
the absence of a decision by the majority, any officer entitled to preside at
such meeting may adjourn, the meeting from time to time to such time (not more
than 30 days after the previously adjourned meeting) and place as such
stockholders or officer may determine, without notice other than by announcement
at the meeting of the time and place of the adjourned meeting.
Section 1.05. Voting. If, pursuant to Section 5.05 of these By-laws,
a record date has been fixed, every holder of record of shares entitled to vote
at a meeting of stockholders shall be entitled to one vote for each share
outstanding in his or her name on the books of the Corporation at the close of
business on such record date. If no record date has been fixed, then every
holder of record of shares entitled to vote at a meeting of stockholders shall
be entitled to one vote for each share of stock outstanding in his or her name
on the books of the Corporation at the close of business on the day next
preceding the day on which notice of the meeting is given. Except as otherwise
required by law, the Amended and Restated Certificate of Incorporation or these
By-laws, the vote of a majority of the shares represented in person or by proxy
at any meeting at which a quorum is present shall be sufficient for the
transaction of any business at such meeting.
Section 1.06. Voting by Ballot. No vote of the stockholders need be
taken by written ballot, unless otherwise required by law. Any vote which need
not be taken by ballot may be conducted in any manner approved by the meeting.
Section 1.07. Adjournment. Notice of any adjourned meeting of the
stockholders of the Corporation need not be given if the place, date and hour
thereof are
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announced at the meeting at which the adjournment is taken, provided
that if the adjournment is for more than thirty days, or if after the
adjournment a new record date for the adjourned meeting is fixed pursuant to
Section 5.05 of these By-laws, a notice of the adjourned meeting, conforming to
the requirements of Section 1.03 hereof, shall be given to each stockholder of
record entitled to vote at such meeting. At any adjourned meeting at which a
quorum is present, any business may be transacted that might have been
transacted on the original date of the meeting.
Section 1.08. Proxies. Any stockholder entitled to vote at any
meeting of the stockholders may, by a written instrument signed by such
stockholder or his or her attorney-in-fact, authorize another person or persons
to vote at any such meeting for him or her by proxy. No such proxy shall be
voted after the expiration of three years from the date of such proxy, unless
such proxy provides for a longer period. Every proxy shall be revocable at the
pleasure of the stockholder executing it, except in those cases where applicable
law provides that a proxy shall be irrevocable. A stockholder may revoke any
proxy which is not irrevocable by attending the meeting and voting in person, by
filing an instrument in writing revoking the proxy or by filing another duly
executed proxy bearing a later date with the Secretary.
Section 1.09. Organization; Procedure. At every meeting of
stockholders the presiding officer shall be the Chairman of the Board or, in the
event of his or her absence or disability, a presiding officer chosen by the
Board of Directors. The Secretary, or in the event of his or her absence or
disability, an Assistant Secretary, if any, or if there be no Assistant
Secretary, in the absence of the Secretary, an appointee of the presiding
officer, shall act as Secretary of the meeting. The order of business and all
other matters of procedure at every meeting of stockholders may be determined by
the presiding officer.
Section 1.10. Advance Notice of Stockholder Proposals and Stockholder
Nominations of Directors. In order to properly submit any business to an annual
meeting of stockholders, or nominate any person for election to the Board of
Directors at any annual meeting of stockholders or any special meeting of
stockholders called for the purpose of electing Directors, a stockholder must
give notice in writing to the Secretary. To be considered timely, a
stockholder's notice must be delivered either in person or by United States
certified mail, postage prepaid, and received at the principal executive offices
of the Corporation (a) in the case of an annual meeting, (i) not less than 60
days nor more than 90 days before the first anniversary date of the
Corporation's proxy statement in connection with the last annual meeting of
stockholders or (ii) if no annual meeting was held in the previous year or the
date of the current annual meeting has been changed by more than 30 days from
the date contemplated at the time of the previous year's proxy statement, not
later than the close of business on the tenth day following the day on which the
notice of the date of the current annual meeting was mailed or other public
disclosure of the date of the annual meeting was made, whichever occurs first,
and (b) in the case of a special meeting of stockholders called for the purpose
of electing Directors, not later than the close of business on the tenth day
following the day on which the notice of the date of the special meeting was
mailed or other public disclosure of the date of the special meeting was made,
whichever occurs first.
The Secretary shall deliver any stockholder proposals and nominations
received in a timely manner for review by the Board of Directors or a committee
designated by the Board of Directors.
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A stockholder's notice to submit business at an annual meeting of
stockholders shall set forth (1) the name and address of such stockholder, (2)
the class and number of shares of stock beneficially owned by such stockholder,
(3) the name in which such shares are registered on the stock transfer books of
the Corporation, (4) a representation that such stockholder intends to appear at
the meeting in person or by proxy to submit the business specified in such
notice, (5) a description of all arrangements or understandings between such
stockholder and any other person or persons (naming such person or persons) in
connection with the business to be submitted and any material interest of such
stockholder in such business and (6) a brief description of the business desired
to be submitted at the annual meeting, including the complete text of any
resolutions to be presented at the annual meeting, and the reasons for
conducting such business at the annual meeting. In addition, the stockholder
making such proposal shall promptly provide any other information reasonably
requested by the Corporation.
In addition to the information required to be given by the foregoing
paragraph, the notice of a stockholder who proposes to nominate a person or
persons for election to the Board of Directors at an annual meeting of
stockholders or a special meeting of stockholders called for the purpose of
electing Directors must also set forth, as to each person whom such stockholder
proposes to nominate for election as a director, (A) the name, age, business
address and, if known, residential address of such person, (B) the principal
occupation or employment of such person, (C) the class and number of shares of
stock of the Corporation which are beneficially owned by such person, (D) any
other information relating to such person that is required to be disclosed in
solicitations of proxies for election of directors or is otherwise required by
the rules and regulations of the Securities and Exchange Commission promulgated
under the Securities Exchange Act of 1934, as amended, (E) the written consent
of such person to be named in the proxy statement as a nominee and to serve as a
director if elected and (F) a description of all arrangements or understandings
between such stockholder and each nominee and any other person or persons
(naming such person or persons) pursuant to which the nomination or nominations
are to be made by such stockholder.
Any person nominated for election as a director by the Board of
Directors or any committee designated by the Board of Directors shall, upon the
request of the Board of Directors or such committee, furnish to the Secretary
all such information pertaining to such person that is required to be set forth
in a stockholder's notice of nomination.
In addition to the foregoing provisions of this Section 1.10, a
stockholder who seeks to have any proposal included in the Corporation's proxy
statement shall comply with the requirements of Regulation 14A under the
Securities Exchange Act of 1934, as amended, at any time when such requirements
are applicable thereto.
In no event shall the public announcement of the adjournment of a
meeting commence a new time period for the giving of a stockholder's notice as
described above.
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ARTICLE II
BOARD OF DIRECTORS
Section 2.01. General Powers. Except as may otherwise be provided by
law, the Amended and Restated Certificate of Incorporation or these By-laws, the
property, affairs and business of the Corporation shall be managed by or under
the direction of the Board of Directors and the Board of Directors may exercise
all the powers of the Corporation.
Section 2.02. Number and Term of Office. Subject to the rights of
any holders of Preferred Stock of the Corporation, the Board of Directors shall
consist of not less than five (5) nor more than fifteen (15) Directors. The
exact number of Directors shall be determined from time to time by a resolution
or resolutions adopted by the affirmative vote of a majority of the total number
of Directors which the Corporation would have if there were no vacancies (the
"entire Board of Directors").
Nominations of persons for election to the Board of Directors may be
made at any annual meeting of stockholders, or at any special meeting of
stockholders called as provided in Section 1.02 for the purpose of electing
Directors, (a) by or at the direction of the Board of Directors (or any duly
authorized committee thereof) or (b) by any stockholder of the Company who was a
stockholder of record at the time of giving of notice provided for in Section
1.10, who is entitled to vote at the meeting and who complied with the notice
procedures set forth in Section 1.10. At each meeting of the stockholders for
the election of Directors, provided a quorum is present, the Directors nominated
in accordance with Section 1.10 for election at such meeting shall be elected by
a plurality of the votes validly cast in such election. 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 foregoing procedures, and if he
should so determine, the Chairman shall declare to the meeting that the
nomination was defective and such defective nomination shall be disregarded.
Section 2.03. Annual and Regular Meetings. An annual meeting of the
Board of Directors for the purpose of electing officers and for the transaction
of such other business as may come before the meeting shall be held each year at
the same place as, and immediately after, the annual meeting of stockholders, or
at such other place and time as shall theretofore have been determined by the
Board of Directors and notice thereof need not be given. The Board of Directors
from time to time may by resolution provide for the holding of regular meetings
and fix the place (which may be within or without the State of Delaware) and the
date and hour of such meetings. Notice of the annual meeting and regular
meetings need not be given, provided that if the Board of Directors shall fix or
change the time or place of any annual or regular meeting, written notice of
such action shall be given to each Director who shall not have been present at
the meeting at which such action was taken at least two days in advance thereof.
Any such notice shall be deemed given to a Director five days after it has been
sent by mail or immediately when sent by telecopy, e-mail, telegram, telex or
other electronic means of transmission addressed to him or her at his or her
address furnished to the Secretary. Notice of such action need not be given to
any Director who attends such annual or regular meeting without protesting the
lack of notice to him or her, prior to or at the commencement of such
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meeting, or to any Director who submits a signed waiver of notice, whether
before or after such meeting.
Section 2.04. Special Meetings; Notice. Special meetings of the Board
of Directors shall be held whenever called by the Chairman of the Board or, in
the event of his or her absence or disability, by the President or by not less
than one-quarter of the Directors then in office, at such place (within or
without the State of Delaware), date and hour as may be specified in the
respective notices or waivers of notice of such meetings. Written notice of each
special meeting of the Board of Directors shall be given to each Director at
least one day in advance thereof. Such notice shall state in general terms the
purpose or purposes of the meeting. Any such notice for a special meeting shall
be deemed given to a Director five days after it has been sent by mail, or
immediately when sent by telecopy, e-mail, telegram, telex or other electronic
means of transmission addressed to him or her at his or her address furnished to
the Secretary. Notice of any special meeting need not be given to any Director
who attends such meeting without protesting the lack of notice to him or her,
prior to or at the commencement of such meeting, or to any Director who submits
a signed waiver of notice, whether before or after such meeting.
Section 2.05. Quorum; Voting. At all meetings of the Board of
Directors, the presence of not less than a majority of the entire Board of
Directors shall constitute a quorum for the transaction of business. Except as
otherwise required by law, the Amended and Restated Certificate of Incorporation
or these By-laws, the vote of a majority of the Directors present at any meeting
at which a quorum is present shall be the act of the Board of Directors. The
Directors present at a duly organized meeting can continue to do business until
adjournment, notwithstanding the withdrawal of enough Directors to leave less
than a quorum.
Section 2.06. Adjournment. A majority of the Directors present,
whether or not a quorum is present, may adjourn any meeting of the Board of
Directors to another time or place. No notice need be given of any adjourned
meeting unless the time and place of the adjourned meeting are not announced at
the time of adjournment, in which case notice conforming to the requirements of
Section 2.04 shall be given to each Director.
Section 2.07. Action Without a Meeting. Any action required or
permitted to be taken at any meeting of the Board of Directors may be taken
without a meeting if all members of the Board of Directors consent thereto in
writing, and such writing or writings are filed with the minutes of proceedings
of the Board of Directors.
Section 2.08. Regulations; Manner of Acting. To the extent
consistent with applicable law, the Amended and Restated Certificate of
Incorporation and these By-laws, the Board of Directors may adopt such rules and
regulations for the conduct of meetings of the Board of Directors and for the
management of the property, affairs and business of the Corporation as the Board
of Directors may deem appropriate. The Directors shall act only as a Board, and
the individual Directors shall have no power as such.
Section 2.09. Action by Telephonic Communications. Members of the
Board of Directors may participate in a meeting of the Board of Directors by
means of conference telephone or similar communications equipment by means of
which all persons participating in
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the meeting can hear each other, and participation in a meeting pursuant to this
provision shall constitute presence in person at such meeting.
Section 2.10. Resignations. Any Director may resign at any time by
delivering a written notice of resignation, signed by such Director, to the
President or the Secretary. Unless otherwise specified therein, such resignation
shall take effect upon delivery.
Section 2.11. Vacancies and Newly Created Directorships. Subject to
the rights of the holders of any series of Preferred Stock of the Corporation,
any vacancy on the Board of Directors that results from an increase in the
number of directors and any other vacancy may be filled by a majority of the
Board of Directors then in office, although less than a quorum, or a sole
remaining director, except that the stockholders shall fill any vacancy
resulting from the removal of a Director by the stockholders. Any director
elected to fill a vacancy not resulting from an increase in the number of
directors shall have the same remaining term as that of his or her predecessor.
Section 2.12. Compensation. The amount, if any, which each Director
shall be entitled to receive as compensation for his or her services as such
shall be fixed from time to time by resolution of the Board of Directors.
Section 2.13. Reliance on Accounts and Reports, etc. A Director, or
a member of any Committee designated by the Board of Directors, shall, in the
performance of his or her duties, be fully protected in relying in good faith
upon the records of the Corporation and upon information, opinions, reports or
statements presented to the Corporation by any of the Corporation's officers or
employees, by Committees designated by the Board of Directors or by any other
person as to the matters the member reasonably believes are within such other
person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Corporation.
ARTICLE III
EXECUTIVE COMMITTEE AND OTHER COMMITTEES
Section 3.01. How Constituted. The Board of Directors may, by
resolution adopted from time to time by a majority of the entire Board of
Directors, create one or more Committees, including an Executive Committee, and
designate the Directors who are to serve as members of each such Committee. Any
member of a Committee may designate in writing to the Board of Directors, and
upon such designation the Board of Directors shall appoint, one or more other
Directors as an alternative member of such Committee, who may replace such
appointing Committee member at any meeting of such Committee where such
appointing member is absent or disqualified. Each member (and each alternate
member) of any such Committee (whether designated at an annual meeting of the
Board of Directors or to fill a vacancy or otherwise) shall hold office until
his or her successor shall have been designated or until he or she shall cease
to be a Director, or until his or her earlier death, resignation or removal.
Section 3.02. Powers. During the intervals between the meetings of
the Board of Directors, the Executive Committee, subject to the Amended and
Restated Certificate of
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Incorporation and these By-laws, shall have and may exercise all the powers and
authority of the Board of Directors in the day to day management of the
property, affairs and business of the Corporation. Each such other Committee
shall have and may exercise powers of the Board of Directors as may be provided
by resolution or resolutions of the Board of Directors.
The Executive Committee shall have, and any other such Committee may
be granted by the Board of Directors, power to authorize the seal of the
Corporation to be affixed to any or all papers which may require it.
Section 3.03. Proceedings. Each such Committee may fix its own rules
of procedure consistent with these By-laws and may meet at such place (within or
without the State of Delaware), at such time and upon such notice, if any, as it
shall determine from time to time. Each such Committee shall keep minutes of its
proceedings and shall report such proceedings to the Board of Directors at the
meeting of the Board of Directors next following any such proceedings.
Section 3.04. Quorum and Manner of Acting. Except as may be otherwise
provided in the resolution creating such Committee, at all meetings of any
Committee the presence of members (or alternate members) constituting a majority
of the total authorized membership of such Committee shall constitute a quorum
for the transaction of business. The members of the Committee present at a duly
organized meeting can continue to do business until adjournment, notwithstanding
the withdrawal of enough members of the Committee to leave less than a quorum.
The act of the majority of the members present at any meeting at which a quorum
is present shall be the act of such Committee. Any action required or permitted
to be taken at any meeting of any such Committee may be taken without a meeting,
if all members of such Committee shall consent to such action in writing and
such writing or writings are filed with the minutes of the proceedings of the
Committee. The members of any such Committee shall act only as a Committee, and
the individual members of such Committee shall have no power as such.
Section 3.05. Action by Telephonic Communications. Members of any
Committee designated by the Board of Directors may participate in a meeting of
such Committee by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in a meeting pursuant to this provision shall
constitute presence in person at such meeting. Section 3.06. Resignations . Any
member (and any alternate member) of any Committee may resign at any time by
delivering a written notice of resignation, signed by such member, to the
Chairman of the Board or the President. Unless otherwise specified therein, such
resignation shall take effect upon delivery.
Section 3.06. Resignations. Any member (and any alternate member) of
any Committee may resign at any time by delivering a written notice of
resignation, signed by such member, to the Chairman of the Board or the
President. Unless otherwise specified therein, such resignation shall take
effect upon delivery.
Section 3.07. Removal. Any member (and any alternate member) of any
Committee may be removed at any time, only for cause, by resolution adopted by a
majority of the entire Board of Directors.
Section 3.08. Vacancies. If any vacancy shall occur in any
Committee, by reason of disqualification, death, resignation, removal or
otherwise, the remaining members (and
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any alternate members) shall continue to act, and any such vacancy may be filled
by the Board of Directors.
ARTICLE IV
OFFICERS
Section 4.01. Number. The officers of the Corporation shall be
chosen by the Board of Directors and may include a Chairman of the Board and
Vice Chairman of the Board (who shall be chosen from among the Directors) and
shall include a President, one or more Vice Presidents, a Secretary, a Treasurer
and such other officers as the Board of Directors may determine. The Board of
Directors also may elect Assistant Secretaries and Assistant Treasurers in such
numbers as the Board of Directors may determine. Any number of offices may be
held by the same person, except that the President and the Secretary shall not
be the same person. Except as otherwise provided in these By-laws, no officer
need be a Director.
Section 4.02. Election. Unless otherwise determined by the Board of
Directors, the officers of the Corporation shall be elected by the Board of
Directors at the annual meeting of the Board of Directors, and shall be elected
to hold office until the next succeeding annual meeting of the Board of
Directors. In the event of the failure to elect officers at such annual meeting,
officers may be elected at any regular or special meeting of the Board of
Directors. Each officer shall hold office until his or her successor has been
elected and qualified, or until his or her earlier death, resignation or
removal. All officers shall serve at the pleasure of the Board of Directors.
Section 4.03. Removal and Resignation; Vacancies. Any officer may be
removed for or without cause at any time by the Board of Directors. Any officer
may resign at any time by delivering a written notice of resignation, signed by
such officer, to the Board of Directors or the Chairman. Unless otherwise
specified therein, such resignation shall take effect upon delivery. Any vacancy
occurring in any office of the Corporation by death, resignation, removal or
otherwise, shall be filled by the Board of Directors.
Section 4.04. Authority and Duties of Officers. The officers of the
Corporation shall have such authority and shall exercise such powers and perform
such duties as may be specified in these By-laws, except that in any event each
officer shall exercise such powers and perform such duties as may be required by
law.
Section 4.05. Chairman of the Board. The Board of Directors may at a
regular or special meeting elect from among their number a Chairman of the
Board. The Chairman of the Board shall preside at all meetings of the Board of
Directors and also shall exercise such powers and perform such duties as may be
delegated or assigned to or required of him or her by or pursuant to these
By-laws or by or pursuant to authorization of the Board of Directors.
Section 4.06. Vice-Chairman of the Board. The Board of Directors may
at a regular or special meeting elect from among their number one or more
Vice-Chairman of the Board. The Vice-Chairman of the Board shall exercise such
powers and perform such duties as
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may be delegated or assigned to or required of him, her or them by or pursuant
to these By-laws or by or pursuant to authorization of the Board of Directors or
by the Chairman of the Board.
Section 4.07. President. The Board of Directors shall at a regular
or special meeting elect a President. The President shall exercise such powers
and perform such duties as may be delegated or assigned to, or required of him
or her by or pursuant to these By-laws or by or pursuant to authorization of the
Board of Directors or (if the President is not the Chief Executive Officer) the
Chief Executive Officer.
Section 4.08. Chief Executive Officer. The Chairman shall be the
Chief Executive Officer of the Corporation unless the Board of Directors shall
appoint a Chief Executive Officer. Subject to the control of the Board of
Directors, and to the extent not otherwise prescribed by these By-laws, the
Chief Executive Officer shall have plenary power over all departments, officers,
employees and agents of the Corporation, and shall be responsible for the
general management and direction of all the business and affairs of the
Corporation.
Section 4.09. The Secretary. The Secretary shall have the following
powers and duties:
(a) He or she shall keep or cause to be kept a record of all the
proceedings of the meetings of the stockholders and of the Board of
Directors in books provided for that purpose.
(b) He or she shall cause all notices to be duly given in accordance
with the provisions of these By-laws and as required by law.
(c) Whenever any Committee shall be appointed pursuant to a
resolution or resolutions of the Board of Directors, he or she shall
furnish a copy of such resolution or resolutions to the members of such
Committee.
(d) He or she shall be the custodian of the records and of the seal
of the Corporation and shall cause such seal (or a facsimile thereof) to
be affixed to all certificates representing shares of the Corporation
prior to the issuance thereof and to all instruments the execution of
which on behalf of the Corporation under its seal shall have been duly
authorized in accordance with these By-laws, and when so affixed he or she
may attest the same.
(e) He or she shall properly maintain and file all books, reports,
statements, certificates and all other documents and records required by
law, the Amended and Restated Certificate of Incorporation or these
By-laws.
(f) He or she shall have charge of the stock books and ledgers of the
Corporation and shall cause the stock and transfer books to be kept in
such manner as to show at any time the number of shares of stock of the
Corporation of each class issued and outstanding, the names
(alphabetically arranged) and the addresses of the holders of record of
such shares, the number of shares held by each holder and the date as of
which each became such holder of record.
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(g) He or she shall sign (unless the Treasurer, an Assistant
Treasurer or Assistant Secretary shall have signed) certificates
representing shares of the Corporation, the issuance of which shall have
been authorized by the Board of Directors.
(h) He or she shall perform, in general, all duties incident to the
office of secretary and such other duties as may be specified in these
By-laws or as may be assigned to him or her from time to time by the Board
of Directors or the Chief Executive Officer.
Section 4.10. The Treasurer. The Treasurer shall have the following
powers and duties:
(a) He or she shall have charge and supervision over and be
responsible for the moneys, securities, receipts and disbursements of the
Corporation and shall keep or cause to be kept full and accurate records
of all receipts of the Corporation.
(b) He or she shall cause the moneys and other valuable effects of
the Corporation to be deposited in the name and to the credit of the
Corporation in such banks or trust companies or with such bankers or other
depositaries as shall be selected in accordance with Section 7.05 of these
By-laws.
(c) He or she shall cause the moneys of the Corporation to be
disbursed by checks or drafts (signed as provided in Section 7.06 of these
By-laws) upon the authorized depositaries of the Corporation and cause to
be taken and preserved proper vouchers for all moneys disbursed.
(d) He or she may sign (unless an Assistant Treasurer or the
Secretary or an Assistant Secretary shall have signed) certificates
representing stock of the Corporation, the issuance of which shall have
been duly authorized by the Board of Directors.
(e) He or she shall perform, in general, all duties incident to the
office of Treasurer and such other duties as may be specified in these
By-laws or as may be assigned to him or her from time to time by the Board
of Directors or the Chief Executive Officer.
Section 4.11. Additional Officers. The Board of Directors may
appoint such other officers and agents as it may deem appropriate, and such
other officers and agents shall hold their offices for such terms and shall
exercise such powers and perform such duties as may be determined from time to
time by the Board of Directors. The Board of Directors from time to time may
delegate to any officer or agent the power to appoint subordinate officers or
agents and to prescribe their respective rights, terms of office, authorities
and duties. Any such officer or agent may remove any such subordinate officer or
agent appointed by him or her, for or without cause.
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ARTICLE V
CAPITAL STOCK
Section 5.01. Certificates of Stock; Uncertificated Shares. The
Shares of the Corporation shall be represented by certificates, provided that
the Board of Directors may provide by resolution or resolutions that some or all
of any or all classes or series of the stock of the Corporation shall be
uncertificated shares. Any such resolution shall not apply to shares represented
by a certificate until each certificate is surrendered to the Corporation.
Notwithstanding the adoption of such a resolution by the Board of Directors,
every holder of stock in the Corporation represented by certificates and upon
request every holder of uncertificated shares shall be entitled to have a
certificate signed by, or in the name of the Corporation by the Chairman of the
Board, or the President or a Vice President and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, representing the number of
shares registered in the certificate form. Such certificate shall be in such
form as the Board of Directors may determine, to the extent consistent with
applicable law, the Amended and Restated Certificate of Incorporation and these
By-laws.
Section 5.02. Signatures; Facsimile. All of such signatures on the
certificate may be a facsimile, engraved or printed, to the extent permitted by
law. 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 or she were such
officer, transfer agent or registrar at the date of issue.
Section 5.03. Lost, Stolen or Destroyed Certificates. The Board of
Directors may direct that a new certificate be issued in place of any
certificate theretofore issued by the Corporation alleged to have been lost,
stolen or destroyed, upon delivery to the Board of Directors of an affidavit of
the owner or owners of such certificate setting forth such allegation. The Board
of Directors may require the owner of such lost, stolen or destroyed
certificate, or his or her 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 any such new certificate.
Section 5.04. Transfer of Stock. Upon surrender to the Corporation
or the transfer agent of the Corporation of a certificate for shares, duly
endorsed or accompanied by appropriate evidence of succession, assignment or
authority to transfer, the Corporation shall issue a new certificate to the
person entitled thereto, cancel the old certificate and record the transaction
upon its books. Within a reasonable time after the transfer of uncertificated
stock, the Corporation shall send to the registered owner thereof a written
notice containing the information required to be set forth or stated on
certificates pursuant to Sections 151, 156, 202(a) or 218(a) of the DGCL.
Subject to the provisions of the Amended and Restated Certificate of
Incorporation and these By-laws, the Board of Directors may prescribe such
additional rules and regulations as it may deem appropriate relating to the
issue, transfer and registration of shares of the Corporation.
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Section 5.05. Record Date. In order to 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, in advance, a record date,
which record date shall not precede the date on which the resolution fixing the
record date is adopted by the Board of Directors, and which shall not be more
than 60 nor less than 10 days before the date of such meeting. A determination
of stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting, provided that the
Board of Directors may fix a new record date for the adjourned meeting.
In order that the Corporation may determine the stockholders entitled
to receive payment of any dividend or other distribution or allotment of any
rights of the stockholders 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 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 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 5.06. Registered Stockholders. Prior to due surrender of a
certificate for registration of transfer, the Corporation may treat the
registered owner as the person exclusively entitled to receive dividends and
other distributions, to vote, to receive notice and otherwise to exercise all
the rights and powers of the owner of the shares represented by such certificate
and the Corporation shall not be bound to recognize any equitable or legal claim
to or interest in such shares on the part of any other person, whether or not
the Corporation shall have notice of such claim or interests. Whenever any
transfer of shares shall be made for collateral security, and not absolutely, it
shall be so expressed in the entry of the transfer if, when the certificates are
presented to the Corporation for transfer or uncertificated shares are requested
to be transferred, both the transferor and transferee request the Corporation to
do so.
Section 5.07. Transfer Agent and Registrar. The Board of Directors
may appoint one or more transfer agents and one or more registrars, and may
require all certificates representing shares to bear the signature of any such
transfer agents or registrars.
ARTICLE VI
INDEMNIFICATION
Section 6.01. Nature of Indemnity. 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, by reason of the fact that he or she
is or was or has agreed to become a Director or officer of the Corporation, is
or was serving or has agreed to serve at the request of the Corporation as a
Director or officer of another corporation (including, without limitation, MONY
Life Insurance Company ("MONY") and its subsidiaries and affiliates),
partnership, joint venture, trust or other enterprise, including an employee
benefit plan, or by reason of any action alleged to have been taken or omitted
in such capacity, and may indemnify any person who was or is a party or is
threatened to be made a party to such an action, suit or proceeding by reason of
the fact that he or she is or was
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or has agreed to become an employee or agent of the Corporation, or is or was
serving or has agreed to serve at the request of the Corporation as a director,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise (including, without limitation, MONY and its subsidiaries and
affiliates), including an employee benefit plan, against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him or her or on his or her behalf in connection with
such action, suit or proceeding and any appeal therefrom, if he or she acted in
good faith and in a manner he or she 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 or her conduct was
unlawful; except that in the case of an action or suit by or in the right of the
Corporation to procure a judgment in its favor (i) such indemnification shall be
limited to expenses (including attorneys' fees) actually and reasonably incurred
by such person in the defense or settlement of such action or suit and (ii) 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 to the Corporation
unless and only to the extent that the Delaware 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 Delaware Court of Chancery or such other court shall deem
proper.
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 or she 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 or her conduct was
unlawful.
Section 6.02. Successful Defense. 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 Section
6.01 hereof or in defense of any claim, issue or matter therein, he or she shall
be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him or her in connection therewith.
Section 6.03. Determination That Indemnification Is Proper. Any
indemnification of a Director or officer of the Corporation under Section 6.01
hereof (unless ordered by a court) shall be made by the Corporation unless a
determination is made that indemnification of the Director or officer is not
proper in the circumstances because he or she has not met the applicable
standard of conduct set forth in Section 6.01 hereof. Any indemnification of an
employee or agent of the Corporation under Section 6.01 hereof (unless ordered
by a court) may be made by the Corporation upon a determination that
indemnification of the employee or agent is proper in the circumstances because
he or she has met the applicable standard of conduct set forth in Section 6.01
hereof. Any such determination shall be made (i) by the Board of Directors by a
majority vote of a quorum consisting of Directors who were not parties to such
action, suit or proceeding, (ii) if such a quorum is not obtainable, or, even if
obtainable a quorum of disinterested Directors so directs, by independent legal
counsel in a written opinion or (iii) by the stockholders.
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Section 6.04. Advance Payment of Expenses. Expenses (including
attorneys' fees) incurred by a Director or officer 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 upon receipt of an undertaking by or on behalf of the Director or
officer to repay such amount if it shall ultimately be determined that he or she
is not entitled to be indemnified by the Corporation as authorized in this
Article VI. Such expenses (including attorneys' fees) incurred by other
employees and agents may be so paid upon such terms and conditions, if any, as
the Board of Directors deems appropriate. The Board of Directors may authorize
the Corporation's counsel to represent such Director, officer, employee or agent
in any action, suit or proceeding, whether or not the Corporation is a party to
such action, suit or proceeding.
Section 6.05. Procedure for Indemnification of Directors and Officers.
Any indemnification of a Director or officer of the Corporation under Sections
6.01 and 6.02 or advance of costs, charges and expenses to a Director or officer
under Section 6.04 shall be made promptly, and in any event within 30 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 this Article is required, and the Corporation fails to respond within 60 days
to a written request for indemnity, the Corporation shall be deemed to have
approved such request. If the Corporation denies a written request for indemnity
or advancement of expenses, in whole or in part, or if payment in full pursuant
to such request is not made within 30 days, the right to indemnification or
advances as granted by this Article VI 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 (other
than an action brought to enforce a claim for the advance of costs, charges and
expenses under Section 6.04 where the required undertaking, if any, has been
received by the Corporation) that the claimant has not met the standard of
conduct set forth in Section 6.01, but the burden of providing such defense
shall be on the Corporation. Neither the failure of the Corporation (including
its Board of Directors, its independent legal counsel and its stockholders) to
have made a determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances because he or she
has met the applicable standard of conduct set forth in Section 6.01, nor the
fact that there has been an actual determination by the Corporation (including
its Board of Directors, its independent legal counsel and its stockholders) that
the claimant has not met such applicable standard of conduct, shall be a defense
to the action or create a presumption that the claimant has not met the
applicable standard of conduct.
Section 6.06. Survival; Preservation of Other Rights. The foregoing
indemnification provisions shall be deemed to be a contract between the
Corporation and each Director, officer, employee and agent who serves in any
such capacity at any time while these provisions as well as the relevant
provisions of the DGCL are in effect, and any repeal or modification thereof
shall not affect any right or obligation then existing with respect to any state
of facts then or previously existing or any action, suit or proceeding
previously or thereafter brought or threatened based in whole or in part upon
any such state of facts. Such a right may not be modified retroactively without
the consent of such Director, officer, employee or agent.
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The indemnification provided by this Article VI 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 action in his or her 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. Insurance. The Corporation may purchase and maintain
insurance on behalf of any person who is or was or has agreed to become a
Director or officer of the Corporation, or is or was serving at the request of
the Corporation as a Director or officer of another corporation (including,
without limitation, MONY and its subsidiaries and affiliates), partnership,
joint venture, trust or other enterprise, including an employee benefit plan,
against any liability asserted against him or her and incurred by him or her or
on his or her behalf in any such capacity, or arising out of his or her status
as such, whether or not the Corporation would have the power to indemnify him or
her against such liability under the provisions of this Article.
Section 6.08. Severability. If this Article or any portion hereof
shall be invalidated on any ground by any court of competent jurisdiction, then
the Corporation shall nevertheless indemnify each Director or officer and may
indemnify each employee or agent of the Corporation as to costs, charges and
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement with respect to any action, suit or proceeding, whether civil,
criminal, administrative or investigative, including an action by or in the
right of the Corporation, to the fullest extent permitted by any applicable
portion of this Article VI that shall not have been invalidated and to the
fullest extent permitted by applicable law.
ARTICLE VII
GENERAL PROVISIONS
Section 7.01. Dividends. Subject to any applicable provisions of law
and the Amended and Restated Certificate of Incorporation, dividends upon the
shares of the Corporation may be declared by the Board of Directors at any
regular or special meeting of the Board of Directors and any such dividend may
be paid in cash, property or shares of the Corporation's capital stock.
A member of the Board of Directors shall be fully protected in
relying in good faith upon the records of the Corporation and upon such
information, opinions, reports or statements presented to the Corporation by any
of its officers or employees, Committees of the Board of Directors, or any other
person as to matters the Director reasonably believes are within such other
person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Corporation, as to the value and amount
of the assets, liabilities and/or net profits of the Corporation, or any other
facts pertinent to the existence and amount of surplus or other funds from which
dividends might properly be declared and paid.
Section 7.02. Reserves. There may be set aside out of any funds of
the Corporation available for dividends such sum or sums as the Board of
Directors from time to time, in its absolute discretion, thinks proper as a
reserve or reserves to meet contingencies, for
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equalizing dividends or for repairing or maintaining any property of the
Corporation or for such other purpose as the Board of Directors shall think
conducive to the interests of the Corporation, and the Board of Directors may
similarly modify or abolish any such reserve.
Section 7.03. Execution of Instruments. The Chairman of the Board,
any Vice-Chairman of the Board, the President, any Vice President, the Secretary
or the Treasurer may in the ordinary course of business enter into any contract
or execute and deliver any instrument in the name and on behalf of the
Corporation. The Board of Directors may authorize any officer or agent to enter
into any contract or execute and deliver any instrument in the name and on
behalf of the Corporation. Any such authorization may be general or limited to
specific contracts or instruments.
Section 7.04. Corporate Indebtedness. No loan shall be contracted on
behalf of the Corporation, and no evidence of indebtedness shall be issued in
its name, unless authorized by the Board of Directors or, to the extent
authorized by a resolution adopted by the Board of Directors, the Chief
Executive Officer. Such authorization may be general or confined to specific
instances. Loans so authorized may be effected at any time for the Corporation
from any bank, trust company or other institution or from any firm, corporation
or individual. All bonds, debentures, notes and other obligations or evidences
of indebtedness of the Corporation issued for such loans shall be made, executed
and delivered as the Board of Directors or (to the extent so authorized) the
Chief Executive Officer shall authorize. When authorized by the Board of
Directors, any part of all the properties, including contract rights, assets,
business or good will of the Corporation, whether then owned or thereafter
acquired, may be mortgaged, pledged, hypothecated or conveyed or assigned in
trust as security for the payment of such bonds, debentures, notes and other
obligations or evidences of indebtedness of the Corporation, and of the interest
thereon, by instruments executed and delivered in the name of the Corporation.
Section 7.05. Deposits. Any funds of the Corporation may be
deposited from time to time in such banks, trust companies or other depositaries
as may be determined by the Board of Directors, the Chairman of the Board or the
President or by such officers or agents as may be authorized by the Board of
Directors, the Chairman of the Board or the President to make such
determination.
Section 7.06. Checks. All checks or demands for money and notes of
the Corporation shall be signed by such officer or officers or such agent or
agents of the Corporation, and in such manner, as the Board of Directors, the
Chairman of the Board or the President from time to time may determine.
Section 7.07. Sale, Transfer, etc., of Securities. The Chairman of
the Board, the President, any Vice President, the Secretary, the Treasurer or
any other officers designated by the Board of Directors, may sell, transfer,
endorse, and assign, in each case in the ordinary course of business, any shares
of stock (other than stock of a subsidiary if such transaction has not been
approved by the Board of Directors), bonds or other securities owned by or held
in the name of the Corporation, and may make, execute and deliver in the name of
the Corporation, under its corporate seal, any instruments that may be
appropriate to effect any such sale, transfer, endorsement or assignment.
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Section 7.08. Voting as Stockholder. The Chairman of the Board, the
President, any Vice President, the Secretary, the Treasurer or any other
officers designated by the Board of Directors, shall have full power and
authority on behalf of the Corporation to attend any meeting of stockholders of
any corporation in which the Corporation may hold stock, and to act, vote (or
execute proxies to vote) and exercise in person or by proxy all other rights,
powers and privileges incident to the ownership of such stock. Such officers
acting on behalf of the Corporation shall have full power and authority to
execute any instrument expressing consent to or dissent from any action of any
such corporation without a meeting.
Section 7.09. Fiscal Year. The fiscal year of the Corporation shall
commence on the first day of January of each year and shall terminate in each
case on December 31.
Section 7.10. Seal. The seal of the Corporation shall be circular in
form and shall contain the name of the Corporation, the year of its
incorporation and the words "Corporate Seal" and "Delaware". The form of such
seal shall be subject to alteration by the Board of Directors. The seal may be
used by causing it or a facsimile thereof to be impressed, affixed or
reproduced, or may be used in any other lawful manner.
Section 7.11. Books and Records. Except to the extent otherwise
required by law, the books and records of the Corporation shall be kept at such
place or places within or without the State of Delaware as may be determined
from time to time by the Board of Directors.
ARTICLE VIII
AMENDMENT OF BY-LAWS
Section 8.01. Amendment. The Board of Directors shall have the
express power, without a vote of stockholders, to adopt any By-law, and to
amend, alter or repeal the By-laws of the Corporation, except to the extent that
the By-laws or the Amended and Restated Certificate of Incorporation otherwise
provide. Except as the Amended and Restated Certificate of Incorporation may
otherwise provide, stockholders may adopt any By-law, or amend, alter or repeal
the By-laws of the Corporation at any annual or special meeting of the
stockholders held in accordance with the By-laws upon the affirmative vote of
the holders of at least a majority of the votes entitled to be cast by the
holders of all then outstanding voting shares of the Corporation, voting
together as a single class.
ARTICLE IX
CONSTRUCTION
Section 9.01. Construction. In the event of any conflict between the
provisions of these By-laws as in effect from time to time and the provisions of
the Amended and Restated Certificate of Incorporation of the Corporation as in
effect from time to time, the provisions of such Amended and Restated
Certificate of Incorporation shall be controlling.
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