EXHIBIT 99.1
EXECUTION COPY
AGREEMENT AND PLAN OF MERGER, dated as of December 28, 2005
between Ispat Inland Inc. ("Inland") and Mittal Steel USA ISG Inc. ("ISG"), each
a Delaware corporation and an indirect wholly-owned subsidiary of Mittal Steel
Company N.V., a company organized under the laws of The Netherlands ("Parent").
WHEREAS, the Boards of Directors of each of Inland and ISG
have determined that it is advisable that Inland be merged with and into ISG
(the "Merger"), on the terms and subject to the conditions contained herein and
in accordance with the General Corporation Law of the State of Delaware.
NOW, THEREFORE, in consideration of the mutual agreements
contained herein, and in order to set forth the terms and conditions of the
Merger and the mode of carrying the same into effect, Inland and ISG hereby
agree as follows:
SECTION 1. The Merger. At the Effective Time (as defined in
Section 2), Inland shall be merged with and into ISG, the separate corporate
existence of Inland shall cease, and ISG shall continue as the surviving
corporation (hereinafter sometimes referred to as the "Surviving Corporation").
SECTION 2. Effective Time of the Merger. The Merger shall
become effective at 11:59 pm EST on December 31, 2005 as set forth in the
Certificate of Merger relating to the Merger which shall be filed with the
Secretary of State of the State of Delaware (the "Effective Time").
SECTION 3. Certificate of Incorporation and By-laws.
(a) At the Effective Time, the Certificate of Incorporation of
ISG as in effect immediately prior to the Effective Time will become the
Certificate of Incorporation of the Surviving Corporation, and as so amended
will become the Certificate of Incorporation of the Surviving Corporation until
thereafter amended as provided by law and such Certificate of Incorporation.
(b) At the Effective Time, the By-laws of ISG shall be amended
in its entirety as set forth in Exhibit A attached hereto and as so amended will
become the By-laws of the Surviving Corporation until thereafter amended as
provided by law, the Certificate of Incorporation of the Surviving Corporation
and such By-laws.
SECTION 4. Directors and Officers. The directors of ISG
immediately prior to the Effective Time shall be the initial directors of the
Surviving Corporation, each to hold office in accordance with the Certificate of
Incorporation and By-laws of the Surviving Corporation, and the officers of ISG
immediately prior to the Effective Time shall be the initial officers of the
Surviving Corporation, in each case until their respective successors are duly
elected or appointed and qualified.
SECTION 5. Conversion of Shares.
(a) At the Effective Time, each issued and outstanding share
of the Common Stock, par value $0.01 per share, of Inland shall, without any
action on the part of Parent, Inland
or ISG, be deemed converted into .1156477 issued and outstanding share of the
Common Stock, par value $0.01 per share, of ISG ("ISG Common Stock"), and each
issued and outstanding share of ISG Common Stock shall remain outstanding
following the Effective Time.
(b) At the Effective Time, each issued and outstanding share
of the Series A 8% Preferred Stock, par value $0.01 per share, of Inland
("Inland Preferred Stock") shall, without any action on the part of Parent,
Inland or ISG, be deemed converted into one issued and outstanding share of
Series A 8% Preferred Stock, par value $0.01 per share, of ISG ("ISG Preferred
Stock"), which ISG Preferred Stock (i) shall have terms that are identical to
Inland Preferred Stock (provided that, as a result of the merger, the issuer
thereof shall be the Surviving Corporation rather than Inland) and (ii) shall be
issued pursuant to action taken by the Board of Directors of ISG.
[Remainder of Page Intentionally Left Blank; Signature Page to Follow]
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the date first above written by their respective
officers thereunto duly authorized.
ISPAT INLAND, INC.
By: /s/ Xxxxxx XxXxx
---------------------------------
Name: Xxxxxx XxXxx
Title: Chief Financial Officer
MITTAL STEEL USA ISG INC.
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: General Counsel and Secretary
Exhibit A
By-Laws of the Surviving Corporation
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BY-LAWS
OF
MITTAL STEEL USA INC.
================================================================================
TABLE OF CONTENTS
SECTION PAGE
ARTICLE I OFFICES
SECTION 1.01. Registered Office...................................................................................1
SECTION 1.02. Other Offices.......................................................................................1
ARTICLE II MEETINGS OF STOCKHOLDERS
SECTION 2.01. Annual Meetings.....................................................................................1
SECTION 2.02. Special Meetings....................................................................................1
SECTION 2.03. Notice of Meetings..................................................................................1
SECTION 2.04. Waiver of Notice....................................................................................2
SECTION 2.05. Adjournments........................................................................................2
SECTION 2.06. Quorum..............................................................................................2
SECTION 2.07. Voting..............................................................................................2
SECTION 2.08. Proxies.............................................................................................3
SECTION 2.09. Stockholders' Consent in Lieu of Meeting............................................................3
ARTICLE III BOARD
SECTION 3.01. General Powers......................................................................................3
SECTION 3.02. Number and Term of Office...........................................................................3
SECTION 3.03. Resignation.........................................................................................3
SECTION 3.04. Removal.............................................................................................3
SECTION 3.05. Vacancies...........................................................................................3
SECTION 3.06. Meetings............................................................................................4
SECTION 3.07. Committees of the Board.............................................................................5
SECTION 3.08. Directors' Consent in Lieu of Meeting...............................................................5
SECTION 3.09. Action by Means of Telephone or Similar Communications Equipment....................................6
SECTION 3.10. Compensation........................................................................................6
ARTICLE IV OFFICERS
SECTION 4.01. Officers............................................................................................6
SECTION 4.02. Authority and Duties................................................................................6
SECTION 4.03. Term of Office, Resignation and Removal.............................................................6
SECTION 4.04. Vacancies...........................................................................................7
SECTION 4.05. The Chairman........................................................................................7
SECTION 4.06. The President.......................................................................................7
SECTION 4.07. Vice Presidents.....................................................................................7
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SECTION 4.08. The Secretary.......................................................................................7
SECTION 4.09. Assistant Secretaries...............................................................................7
SECTION 4.10. The Treasurer.......................................................................................8
SECTION 4.11. Assistant Treasurers................................................................................8
ARTICLE V CHECKS, DRAFTS, NOTES, AND PROXIES
SECTION 5.01. Checks, Drafts and Notes............................................................................8
SECTION 5.02. Execution of Proxies................................................................................8
ARTICLE VI SHARES AND TRANSFERS OF SHARES
SECTION 6.01. Certificates Evidencing Shares......................................................................8
SECTION 6.02. Stock Ledger........................................................................................9
SECTION 6.03. Transfers of Shares.................................................................................9
SECTION 6.04. Addresses of Stockholders...........................................................................9
SECTION 6.05. Lost, Destroyed and Mutilated Certificates..........................................................9
SECTION 6.06. Regulations.........................................................................................9
SECTION 6.07. Fixing Date for Determination of Stockholders of Record.............................................9
ARTICLE VII SEAL
SECTION 7.01. Seal...............................................................................................10
ARTICLE VIII FISCAL YEAR
SECTION 8.01. Fiscal Year........................................................................................10
ARTICLE IX INDEMNIFICATION AND INSURANCE
SECTION 9.01. Liability of Directors.............................................................................10
SECTION 9.02. Right to Indemnification...........................................................................10
SECTION 9.03. Right to Advancement of Expenses...................................................................11
SECTION 9.04. Right of Indemnitee to Bring Suit..................................................................11
SECTION 9.05. Non-Exclusivity of Rights..........................................................................12
SECTION 9.06. Insurance..........................................................................................12
ARTICLE X AMENDMENTS
SECTION 10.01. Amendments........................................................................................12
BY-LAWS
OF
MITTAL STEEL USA INC.
ARTICLE I
OFFICES
SECTION 1.01. Registered Office. The registered office of
Mittal Steel USA Inc. (the "Corporation") in the State of Delaware shall be at
the principal office of the Corporation Service Company in the City of
Wilmington, County of Xxx Xxxxxx, Xxxxxxxx 00000 and the registered agent in
charge thereof shall be the Corporation Services Company.
SECTION 1.02. Other Offices. The Corporation may also have an
office or offices at any other place or places within or without the State of
Delaware as the Board of Directors of the Corporation (the "Board") may from
time to time determine or the business of the Corporation may from time to time
require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 2.01. Annual Meetings. The annual meeting of
stockholders of the Corporation for the election of directors of the
Corporation, and for the transaction of such other business as may properly come
before such meeting, shall be held at such place, date and time as shall be
fixed by the Board and designated in the notice or waiver of notice of such
annual meeting; provided, however, that no annual meeting of stockholders need
be held if all actions, including the election of directors, required by the
General Corporation Law of the State of Delaware (the "General Corporation Law")
to be taken at such annual meeting are taken by written consent in lieu of
meeting pursuant to Section 2.09 hereof.
SECTION 2.02. Special Meetings. Special meetings of
stockholders for any purpose or purposes may be called by the Board or the
Chairman of the Board, the President or the Secretary of the Corporation or by
the recordholders of at least a majority of the shares of common stock of the
Corporation issued and outstanding and entitled to vote thereat, to be held at
such place, date and time as shall be designated in the notice or waiver of
notice thereof.
SECTION 2.03. Notice of Meetings. (a) Except as otherwise
provided by law, written notice of each annual or special meeting of
stockholders stating the place, date and time of such meeting and, in the case
of a special meeting, the purpose or purposes for which such meeting is to be
held, shall be given personally or by first-class mail (airmail in the case of
international communications) to each recordholder of shares entitled to vote
thereat, not less than 10 nor more than 60 days before the date of such meeting.
If mailed, such notice shall be
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deemed to be given when deposited in the United States mail, postage prepaid,
directed to the stockholder at such stockholder's address as it appears on the
records of the Corporation. If, prior to the time of mailing, the Secretary of
the Corporation (the "Secretary") shall have received from any stockholder a
written request that notices intended for such stockholder are to be mailed to
some address other than the address that appears on the records of the
Corporation, notices intended for such stockholder shall be mailed to the
address designated in such request.
(b) Notice of a special meeting of stockholders may be given
by the person or persons calling the meeting, or, upon the written request of
such person or persons, such notice shall be given by the Secretary on behalf of
such person or persons. If the person or persons calling a special meeting of
stockholders give notice thereof, such person or persons shall deliver a copy of
such notice to the Secretary. Each request to the Secretary for the giving of
notice of a special meeting of stockholders shall state the purpose or purposes
of such meeting.
SECTION 2.04. Waiver of Notice. Notice of any annual or
special meeting of stockholders need not be given to any stockholder who files a
written waiver of notice with the Secretary, signed by the person entitled to
notice, whether before or after such meeting. Neither the business to be
transacted at, nor the purpose of, any meeting of stockholders need be specified
in any written waiver of notice thereof. Attendance of a stockholder at a
meeting, in person or by proxy, shall constitute a waiver of notice of such
meeting, except when such stockholder attends a meeting for the express purpose
of objecting, at the beginning of the meeting, to the transaction of any
business on the grounds that the notice of such meeting was inadequate or
improperly given.
SECTION 2.05. Adjournments. Whenever a meeting of
stockholders, annual or special, is adjourned to another date, time or place,
notice need not be given of the adjourned meeting if the date, time and place
thereof are announced at the meeting at which the adjournment is taken. If the
adjournment is for more than 30 days, or if after the adjournment a new record
date is fixed for the adjourned meeting, a notice of the adjourned meeting shall
be given to each stockholder entitled to vote thereat. At the adjourned meeting,
any business may be transacted which might have been transacted at the original
meeting.
SECTION 2.06. Quorum. Except as otherwise provided by law or
the Certificate of Incorporation of the Corporation (the "Certificate of
Incorporation"), the recordholders of a majority of the shares entitled to vote
thereat, present in person or by proxy, shall constitute a quorum for the
transaction of business at all meetings of stockholders, whether annual or
special. If, however, such quorum shall not be present in person or by proxy at
any meeting of stockholders, the stockholders entitled to vote thereat may
adjourn the meeting from time to time in accordance with Section 2.05 hereof
until a quorum shall be present in person or by proxy.
SECTION 2.07. Voting. Each stockholder entitled to vote at any
meeting of stockholders shall be entitled to one vote for each share of stock
held by such stockholder which has voting power upon the matter in question.
Except as otherwise provided by law or the Certificate of Incorporation, when a
quorum is present at any meeting of stockholders, the vote of the recordholders
of a majority of the shares constituting such quorum shall decide any question
brought before such meeting.
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SECTION 2.08. Proxies. Each stockholder entitled to vote at a
meeting of stockholders or to express, in writing, consent to or dissent from
any action of stockholders without a meeting may authorize another person or
persons to act for such stockholder by proxy. Such proxy shall be filed with the
Secretary before such meeting of stockholders or such action of stockholders
without a meeting, at such time as the Board may require. No proxy shall be
voted or acted upon more than three years from its date, unless the proxy
provides for a longer period.
SECTION 2.09. Stockholders' Consent in Lieu of Meeting. Any
action required by the General Corporation Law to be taken at any annual or
special meeting of stockholders, and any action which may be taken at any annual
or special meeting of stockholders, may be taken without a meeting, without
prior notice and without a vote, if a consent in writing, setting forth the
action so taken, shall be signed by the recordholders of shares having not less
than the minimum number of votes necessary to authorize or take such action at a
meeting at which the recordholders of all shares entitled to vote thereon were
present and voted.
ARTICLE III
BOARD
SECTION 3.01. General Powers. The business and affairs of the
Corporation shall be managed by the Board, which may exercise all such powers of
the Corporation and do all such lawful acts and things as are not by law, the
Certificate of Incorporation or these By-laws directed or required to be
exercised or done by stockholders.
SECTION 3.02. Number and Term of Office. The number of
directors shall be eight or such other number as shall be fixed from time to
time by the Board. Directors need not be stockholders. Directors shall be
elected at the annual meeting of stockholders or, if, in accordance with Section
2.01 hereof, no such annual meeting is held, by written consent in lieu of
meeting pursuant to Section 2.09 hereof, and each director shall hold office
until his successor is elected and qualified, or until his earlier death or
resignation or removal in the manner hereinafter provided.
SECTION 3.03. Resignation. Any director may resign at any time
by delivering his written resignation to the Board, the Chairman of the Board of
the Corporation (the "Chairman") or the Secretary. Such resignation shall take
effect at the time specified in such notice or, if the time be not specified,
upon receipt thereof by the Board, the Chairman or the Secretary, as the case
may be. Unless otherwise specified therein, acceptance of such resignation shall
not be necessary to make it effective.
SECTION 3.04. Removal. Any or all of the directors may be
removed, with or without cause, at any time by vote of the recordholders of a
majority of the shares then entitled to vote at an election of directors, or by
written consent of the recordholders of shares pursuant to Section 2.09 hereof.
SECTION 3.05. Vacancies. Vacancies occurring on the Board as a
result of the removal of directors without cause may be filled only by vote of
the recordholders of a majority
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of the shares then entitled to vote at an election of directors, or by written
consent of such recordholders pursuant to Section 2.09 hereof. Vacancies
occurring on the Board for any other reason, including, without limitation,
vacancies occurring as a result of the creation of new directorships that
increase the number of directors, may be filled by such vote or written consent
or by vote of the Board or by written consent of the directors pursuant to
Section 3.08 hereof. If the number of directors then in office is less than a
quorum, such other vacancies may be filled by vote of a majority of the
directors then in office or by written consent of all such directors pursuant to
Section 3.08 hereof. Unless earlier removed pursuant to Section 3.04 hereof,
each director chosen in accordance with this Section 3.05 shall hold office
until the next annual election of directors by the stockholders and until his
successor shall be elected and qualified.
SECTION 3.06. Meetings. (a) Annual Meetings. As soon as
practicable after each annual election of directors by the stockholders, the
Board shall meet for the purpose of organization and the transaction of other
business, unless it shall have transacted all such business by written consent
pursuant to Section 3.08 hereof.
(b) Other Meetings. Other meetings of the Board shall be held
at such times as the Chairman, the President of the Corporation (the
"President"), the Secretary or a majority of the Board shall from time to time
determine.
(c) Notice of Meetings. The Secretary shall give written
notice to each director of each meeting of the Board, which notice shall state
the place, date, time and purpose of such meeting. Notice of each such meeting
shall be given to each director, if by mail, addressed to him at his residence
or usual place of business, at least three days before the day on which such
meeting is to be held, or shall be sent to him at such place by telecopy,
telegraph, cable, or other form of recorded communication, or be delivered
personally or by telephone not later than the day before the day on which such
meeting is to be held. A written waiver of notice, signed by the director
entitled to notice, whether before or after the time of the meeting referred to
in such waiver, shall be deemed equivalent to notice. Neither the business to be
transacted at, nor the purpose of any meeting of the Board need be specified in
any written waiver of notice thereof. Attendance of a director at a meeting of
the Board shall constitute a waiver of notice of such meeting, except as
provided by law.
(d) Place of Meetings. The Board may hold its meetings at such
place or places within or without the State of Delaware as the Board or the
Chairman may from time to time determine, or as shall be designated in the
respective notices or waivers of notice of such meetings.
(e) Quorum and Manner of Acting. One-third of the total number
of directors then in office shall be present in person at any meeting of the
Board in order to constitute a quorum for the transaction of business at such
meeting, and the vote of a majority of those directors present at any such
meeting at which a quorum is present shall be necessary for the passage of any
resolution or act of the Board, except as otherwise expressly required by law,
the Certificate of Incorporation or these By-laws. In the absence of a quorum
for any such meeting, a majority of the directors present thereat may adjourn
such meeting from time to time until a quorum shall be present.
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(f) Organization. At each meeting of the Board, one of the
following shall act as chairman of the meeting and preside, in the following
order of precedence:
1) the Chairman;
2) the President;
3) any director chosen by a majority of the
directors present.
The Secretary or, in the case of his absence, any person (who shall be an
Assistant Secretary, if an Assistant Secretary is present) whom the chairman of
the meeting shall appoint shall act as secretary of such meeting and keep the
minutes thereof.
SECTION 3.07. Committees of the Board. The Board may, by
resolution passed by a majority of the whole Board, designate one or more
committees, each committee to consist of one or more directors. 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 such committee. In
the absence or disqualification of a member of a committee, the member or
members thereof present at any meeting and not disqualified from voting, whether
or not he or they constitute a quorum, may unanimously appoint another director
to act at the meeting in the place of any such absent or disqualified member.
Any committee of the Board, to the extent provided in the resolution of the
Board designating such committee, shall have and may exercise all the powers and
authority of the Board 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 such committee shall
have such power or authority in reference to amending the Certificate of
Incorporation (except that such a committee may, to the extent authorized in the
resolution or resolutions providing for the issuance of shares of stock adopted
by the Board as provided in Section 151(a) of the General Corporation Law, fix
the designations and any of the preferences or rights of such shares relating to
dividends, redemption, dissolution, any distribution of assets of the
Corporation or the conversion into, or the exchange of such shares for, shares
of any other class or classes of stock of the Corporation or fix the number of
shares of any series of stock or authorize the increase or decrease of the
shares of any series), adopting an agreement of merger or consolidation under
Section 251 or 252 of the General Corporation Law, recommending to the
stockholders the sale, lease or exchange of all or substantially all the
Corporation's property and assets, recommending to the stockholders a
dissolution of the Corporation or the revocation of a dissolution, or amending
these By-laws; provided further, however, that, unless expressly so provided in
the resolution of the Board designating such committee, no such committee shall
have the power or authority to declare a dividend, to authorize the issuance of
stock, or to adopt a certificate of ownership and merger pursuant to Section 253
of the General Corporation Law. Each committee of the Board shall keep regular
minutes of its proceedings and report the same to the Board when so requested by
the Board.
SECTION 3.08. Directors' Consent in Lieu of Meeting. Any
action required or permitted to be taken at any meeting of the Board or of any
committee thereof may be taken without a meeting, without prior notice and
without a vote, if a consent in writing or by electronic transmission, setting
forth the action so taken, shall be signed by all the members of
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the Board or such committee and such consent or electronic transmission is filed
with the minutes of the proceedings of the Board or such committee. Such filing
shall be in paper form if the minutes are maintained in paper form and shall be
in electronic form if the minutes are maintained in electronic form.
SECTION 3.09. Action by Means of Telephone or Similar
Communications Equipment. Any one or more members of the Board, or of any
committee thereof, may participate in a meeting of the Board or 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 by such means shall constitute presence in person at
such meeting.
SECTION 3.10. Compensation. Unless otherwise restricted by the
Certificate of Incorporation, the Board may determine the compensation of
directors. In addition, as determined by the Board, directors may be reimbursed
by the Corporation for their expenses, if any, in the performance of their
duties as directors. No such compensation or reimbursement shall preclude any
director from serving the Corporation in any other capacity and receiving
compensation therefor.
ARTICLE IV
OFFICERS
SECTION 4.01. Officers. The officers of the Corporation shall
be the Chairman, the President, the Secretary and a Treasurer and may include
one or more Vice Presidents and one or more Assistant Secretaries and one or
more Assistant Treasurers. Any two or more offices may be held by the same
person.
SECTION 4.02. Authority and Duties. All officers shall have
such authority and perform such duties in the management of the Corporation as
may be provided in these By-laws or, to the extent not so provided, by
resolution of the Board.
SECTION 4.03. Term of Office, Resignation and Removal. (a)
Each officer shall be appointed by the Board and shall hold office for such term
as may be determined by the Board. Each officer shall hold office until his
successor has been appointed and qualified or his earlier death or resignation
or removal in the manner hereinafter provided. The Board may require any officer
to give security for the faithful performance of his duties.
(b) Any officer may resign at any time by giving written
notice to the Board, the Chairman, the President or the Secretary. Such
resignation shall take effect at the time specified in such notice or, if the
time be not specified, upon receipt thereof by the Board, the Chairman, the
President or the Secretary, as the case may be. Unless otherwise specified
therein, acceptance of such resignation shall not be necessary to make it
effective.
(c) All officers and agents appointed by the Board shall be
subject to removal, with or without cause, at any time by the Board or by the
action of the recordholders of a majority of the shares entitled to vote
thereon.
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SECTION 4.04. Vacancies. Any vacancy occurring in any office
of the Corporation, for any reason, shall be filled by action of the Board.
Unless earlier removed pursuant to Section 4.03 hereof, any officer appointed by
the Board to fill any such vacancy shall serve only until such time as the
unexpired term of his predecessor expires unless reappointed by the Board.
SECTION 4.05. The Chairman. The Chairman shall have the power
to call special meetings of stockholders, to call special meetings of the Board
and, if present, to preside at all meetings of stockholders and all meetings of
the Board. The Chairman shall perform all duties incident to the office of
Chairman of the Board and all such other duties as may from time to time be
assigned to him by the Board or these By-laws.
SECTION 4.06. The President. The President shall be the chief
executive officer of the Corporation and shall have general and active
management and control of the business and affairs of the Corporation, subject
to the control of the Board, and shall see that all orders and resolutions of
the Board are carried into effect. The President shall perform all duties
incident to the office of President and all such other duties as may from time
to time be assigned to him by the Board or these By-laws.
SECTION 4.07. Vice Presidents. Vice Presidents, if any, in
order of their seniority or in any other order determined by the Board, shall
generally assist the President and perform such other duties as the Board or the
President shall prescribe, and in the absence or disability of the President,
shall perform the duties and exercise the powers of the President.
SECTION 4.08. The Secretary. The Secretary shall, to the
extent practicable, attend all meetings of the Board and all meetings of
stockholders and shall record all votes and the minutes of all proceedings in a
book to be kept for that purpose, and shall perform the same duties for any
committee of the Board when so requested by such committee. He shall give or
cause to be given notice of all meetings of stockholders and of the Board, shall
perform such other duties as may be prescribed by the Board, the Chairman or the
President and shall act under the supervision of the Chairman. He shall keep in
safe custody the seal of the Corporation and affix the same to any instrument
that requires that the seal be affixed to it and which shall have been duly
authorized for signature in the name of the Corporation and, when so affixed,
the seal shall be attested by his signature or by the signature of the Treasurer
of the Corporation (the "Treasurer") or an Assistant Secretary or Assistant
Treasurer of the Corporation. He shall keep in safe custody the certificate
books and stockholder records and such other books and records of the
Corporation as the Board, the Chairman or the President may direct and shall
perform all other duties incident to the office of Secretary and such other
duties as from time to time may be assigned to him by the Board, the Chairman or
the President.
SECTION 4.09. Assistant Secretaries. Assistant Secretaries of
the Corporation ("Assistant Secretaries"), if any, in order of their seniority
or in any other order determined by the Board, shall generally assist the
Secretary and perform such other duties as the Board or the Secretary shall
prescribe, and, in the absence or disability of the Secretary, shall perform the
duties and exercise the powers of the Secretary.
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SECTION 4.10. The Treasurer. The Treasurer shall have the care
and custody of all the funds of the Corporation and shall deposit such funds in
such banks or other depositories as the Board, or any officer or officers, or
any officer and agent jointly, duly authorized by the Board, shall, from time to
time, direct or approve. He shall disburse the funds of the Corporation under
the direction of the Board and the President. He shall keep a full and accurate
account of all moneys received and paid on account of the Corporation and shall
render a statement of his accounts whenever the Board, the Chairman or the
President shall so request. He shall perform all other necessary actions and
duties in connection with the administration of the financial affairs of the
Corporation and shall generally perform all the duties usually appertaining to
the office of treasurer of a corporation. When required by the Board, he shall
give bonds for the faithful discharge of his duties in such sums and with such
sureties as the Board shall approve.
SECTION 4.11. Assistant Treasurers. Assistant Treasurers of
the Corporation ("Assistant Treasurers"), if any, in order of their seniority or
in any other order determined by the Board, shall generally assist the Treasurer
and perform such other duties as the Board or the Treasurer shall prescribe,
and, in the absence or disability of the Treasurer, shall perform the duties and
exercise the powers of the Treasurer.
ARTICLE V
CHECKS, DRAFTS, NOTES, AND PROXIES
SECTION 5.01. Checks, Drafts and Notes. All checks, drafts and
other orders for the payment of money, notes and other evidences of indebtedness
issued in the name of the Corporation shall be signed by such officer or
officers, agent or agents of the Corporation and in such manner as shall be
determined, from time to time, by resolution of the Board.
SECTION 5.02. Execution of Proxies. The Chairman, the
President or any Vice President may authorize, from time to time, the execution
and issuance of proxies to vote shares of stock or other securities of other
corporations held of record by the Corporation and the execution of consents to
action taken or to be taken by any such corporation. All such proxies and
consents, unless otherwise authorized by the Board, shall be signed in the name
of the Corporation by the Chairman, the President or any Vice President.
ARTICLE VI
SHARES AND TRANSFERS OF SHARES
SECTION 6.01. Certificates Evidencing Shares. Shares shall be
evidenced by certificates in such form or forms as shall be approved by the
Board. Certificates shall be issued in consecutive order and shall be numbered
in the order of their issue, and shall be signed by the Chairman, the President
or any Vice President and by the Secretary, any Assistant Secretary, the
Treasurer or any Assistant Treasurer. If such a certificate is manually signed
by one such officer, any other signature on the certificate may be a facsimile.
In the event any such officer who has signed or whose facsimile signature has
been placed upon a certificate shall have ceased to hold
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such office or to be employed by the Corporation before such certificate is
issued, such certificate may be issued by the Corporation with the same effect
as if such officer had held such office on the date of issue.
SECTION 6.02. Stock Ledger. A stock ledger in one or more
counterparts shall be kept by the Secretary, in which shall be recorded the name
and address of each person, firm or corporation owning the shares evidenced by
each certificate evidencing shares issued by the Corporation, the number of
shares evidenced by each such certificate, the date of issuance thereof and, in
the case of cancellation, the date of cancellation. Except as otherwise
expressly required by law, the person in whose name shares stand on the stock
ledger of the Corporation shall be deemed the owner and recordholder thereof for
all purposes.
SECTION 6.03. Transfers of Shares. Registration of transfers
of shares shall be made only in the stock ledger of the Corporation upon request
of the registered holder of such shares, or of his attorney thereunto authorized
by power of attorney duly executed and filed with the Secretary, and upon the
surrender of the certificate or certificates evidencing such shares properly
endorsed or accompanied by a stock power duly executed, together with such proof
of the authenticity of signatures as the Corporation may reasonably require.
SECTION 6.04. Addresses of Stockholders. Each stockholder
shall designate to the Secretary an address at which notices of meetings and all
other corporate notices may be served or mailed to such stockholder, and, if any
stockholder shall fail to so designate such an address, corporate notices may be
served upon such stockholder by mail directed to the mailing address, if any, as
the same appears in the stock ledger of the Corporation or at the last known
mailing address of such stockholder.
SECTION 6.05. Lost, Destroyed and Mutilated Certificates. Each
recordholder of shares shall promptly notify the Corporation of any loss,
destruction or mutilation of any certificate or certificates evidencing any
share or shares of which he is the recordholder. The Board may, in its
discretion, cause the Corporation to issue a new certificate in place of any
certificate theretofore issued by it and alleged to have been mutilated, lost,
stolen or destroyed, upon the surrender of the mutilated certificate or, in the
case of loss, theft or destruction of the certificate, upon satisfactory proof
of such loss, theft or destruction, and the Board may, in its discretion,
require the recordholder of the shares evidenced by the lost, stolen or
destroyed certificate or his legal representative to give the Corporation a bond
sufficient to indemnify the Corporation against any claim made against it on
account of the alleged loss, theft or destruction of any such certificate or the
issuance of such new certificate.
SECTION 6.06. Regulations. The Board may make such other rules
and regulations as it may deem expedient, not inconsistent with these By-laws,
concerning the issue, transfer and registration of certificates evidencing
shares.
SECTION 6.07. Fixing Date for Determination of Stockholders of
Record. 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 to express consent to, or to dissent from, corporate action in writing
without a meeting, 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
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change, conversion or exchange of stock, or for the purpose of any other lawful
action, the Board may fix, in advance, a record date, which shall not be more
than 60 nor less than 10 days before the date of such meeting, nor more than 60
days prior to any other such action. A determination of the stockholders
entitled to notice of or to vote at a meeting of stockholders shall apply to any
adjournment of such meeting; provided, however, that the Board may fix a new
record date for the adjourned meeting.
ARTICLE VII
SEAL
SECTION 7.01. Seal. The Board may approve and adopt a
corporate seal, which shall be in the form of a circle and shall bear the full
name of the Corporation, the year of its incorporation and the words "Corporate
Seal Delaware".
ARTICLE VIII
FISCAL YEAR
SECTION 8.01. Fiscal Year. The fiscal year of the Corporation
shall end on the thirty-first day of December of each year unless changed by
resolution of the Board.
ARTICLE IX
INDEMNIFICATION AND INSURANCE
SECTION 9.01. Liability of Directors. To the full extent
permitted by the Delaware General Corporation Law or any other applicable law
currently or hereafter in effect, no Director will be personally liable to the
Corporation or its stockholders for or with respect to any acts or omissions in
the performance of his or her duties as a Director. If the Delaware General
Corporation Law is amended hereafter to authorize the further elimination or
limitation of the liability of directors, then the liability of a Director shall
be eliminated or limited to the fullest extent authorized by the Delaware
General Corporation Law, as so amended. Any repeal or modification of this
Article IX will not adversely affect any right of protection of a Director
existing prior to such repeal or modification.
SECTION 9.02. Right to Indemnification. Each person who was
or is made a party to or is otherwise involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative (a
"Proceeding"), by reason of the fact that such person is or was a Director,
officer, employee or agent of the Corporation or is or was serving at the
request of the Corporation as Director, officer, employee or agent of another
company or of a partnership, joint venture, trust or other enterprise, including
service with respect to an employee benefit plan (an "Indemnitee"), whether the
basis of such Proceeding is alleged action in an official capacity as a
director, officer, employee or agent or in any other capacity while serving as a
director, officer, employee or agent, shall be indemnified and held harmless by
the Corporation to the fullest extent permitted or required by the General
Corporation Law as the same exists or may hereafter
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be amended (but, in the case of any such amendment, only to the extent that such
amendment permits the Corporation to provide broader indemnification rights than
such law permitted the Corporation to provide prior to such amendment), against
all expense, liability and loss (including attorneys' fees, judgments, fines,
ERISA excise taxes or penalties and amounts paid in settlement) reasonably
incurred or suffered by such Indemnity in connection therewith; provided,
however, that, except as provided in Section 9.04 hereof with respect to
Proceedings to enforce rights to indemnification, the Corporation shall
indemnify any such Indemnitee only if such Proceeding (or part thereof) was
authorized by the Board of Directors of the Corporation.
SECTION 9.03. Right to Advancement of Expenses. The right to
indemnification conferred in Section 9.02 hereof shall include the right to be
paid by the Corporation the expenses (including, without limitation, attorneys'
fees and expenses) incurred in defending any such Proceeding in advance of its
final disposition (an "Advancement of Expense"); provided, however, that, if the
General Corporation Law so requires, an Advancement of Expenses incurred by an
Indemnitee in his or her capacity as a director, officer, employee or agent (and
not in any other capacity in which service was or is rendered by such
Indemnitee, including, without limitation, service to an employee benefit plan)
shall be made only upon delivery to the Corporation of an undertaking (an
"Undertaking"), by or on behalf of such Indemnitee, to repay all amounts so
advanced if it shall ultimately be determined by final judicial decision from
which there is no further right to appeal (a "Final Adjudication") that such
Indemnitee is not entitled to be indemnified for such expenses under this
Section 9.03 or otherwise. The rights to indemnification and to the Advancement
of Expenses conferred in Sections 9.02 and 9.03 hereof shall be contract rights
and such rights shall continue as to an Indemnitee who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
Indemnitee's heirs, executors and administrators.
SECTION 9.04. Right of Indemnitee to Bring Suit. If a claim
under Section 9.02 or 9.03 hereof is not paid in full by the Corporation within
60 calendar days after a written claim has been received by the Corporation,
except in the case of a claim for an Advancement of Expenses, in which case the
applicable period shall be 20 calendar days, the Indemnitee may at any time
thereafter bring to suit against the Corporation to recover the unpaid amount of
the claim. If successful in whole or part in any such suit, or in a suit brought
by the Corporation to recover an Advancement of Expenses pursuant to the terms
of an undertaking, the Indemnitee shall be entitled to be paid also the expense
of prosecuting or defending such suit. In (i) any suit brought by the Indemnitee
to enforce a right to Indemnification hereunder (but not in a suit brought by
the Indemnitee to enforce a right to an Advancement of Expanses) it shall be a
defense that, and (ii) any suit brought by the Corporation to recover an
Advancement of Expenses pursuant to the terms of an undertaking, the Corporation
shall be entitled to recover such expenses upon a Final Adjudication that, the
Indemnitee has not met any applicable standard for Indemnification set forth in
the General Corporation Law. Neither the failure of the Corporation (including
its Board of Directors, independent legal counsel or stockholders) to have made
a determination prior to the commencement of such suit that indemnification of
the Indemnitee is proper in the circumstances because the Indemnitee has met the
applicable standard of conduct set forth in the General Corporation Law, nor an
actual determination by the Corporation (including its Board of Directors,
independent legal counsel or stockholders) that the Indemnitee has not met such
applicable standard of conduct, shall create a presumption that the Indemnitee
has not met the applicable standard of conduct or, in the case of such a suit
brought
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by the Indemnitee, be a defense to such suit. In any suit brought by the
Indemnitee to enforce a right to Indemnification or to an Advancements of
Expenses pursuant to the terms of an undertaking, the burden of proving that the
Indemnitee is not entitled to be indemnified, or to such Advancements of
Expenses, under this Article IX or otherwise shall be on the Corporation.
SECTION 9.05. Non-Exclusivity of Rights. The rights to
indemnification and to the Advancement of Expenses conferred in this Article IX
shall not be exclusive of any other right which any person may have or hereafter
acquire under any statute, the Corporation's Certificate of Incorporation,
By-laws, agreement, vote of stockholders or disinterested directors or
otherwise. The By-laws of the Corporation may contain such other provisions
concerning indemnification, including provisions specifying reasonable
procedures relating to and conditions to the receipt by indemnitees of
indemnification, provided that such provisions are not inconsistent with the
provisions of this Article IX.
SECTION 9.06. Insurance. The Corporation may maintain
insurance, at its expense, to protect itself and any person who is or was a
director, officer, employee or agent of the Corporation or another corporation,
partnership, joint venture, trust or other enterprise against any expense,
liability or loss, whether or not the Corporation would have the power to
indemnify such person against such expense, liability or loss under the General
Corporation Law.
ARTICLE X
AMENDMENTS
SECTION 10.01. Amendments. Any By-law (including these
By-laws) may be altered, amended or repealed by the vote of the recordholders of
a majority of the shares then entitled to vote at an election of directors or by
written consent of stockholders pursuant to Section 2.09 hereof, or by vote of
the Board or by a written consent of directors pursuant to Section 3.08 hereto.
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