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Exhibit 3.2
RESTATED BYLAWS
OF
NATIONWIDE FINANCIAL SERVICES, INC.
(hereinafter called the "Corporation")
For the Government of the Stockholders
and Board of Directors
ARTICLE I
OFFICES
Section 1. REGISTERED OFFICE. The registered office of the Corporation
in the State of Delaware is c/o Corporation Trust Center, 1209 Orange Street, in
the City of Wilmington, in the State of Delaware.
Section 2. OTHER OFFICES. The Corporation may have other offices,
either within or without the State of Delaware, at such place or places as the
Board of Directors may from time to time appoint or the business of the
Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. MEETINGS IN OR OUT OF STATE. Any annual or special meeting
of stockholders may be held in or outside of the State of Delaware.
Section 2. ANNUAL MEETINGS. An annual meeting of the stockholders for
the election of directors and such other business as may come before the meeting
shall be held on such date, at such place and at such time as shall be
designated by the Board of Directors. If for any reason the annual meeting is
not held as provided for in this section, then the business to be transacted
thereat may be transacted at any special meeting of stockholders called as
provided for in Section 3 of this Article II.
Section 3. SPECIAL MEETINGS. Special meetings of the stockholders may
be called by the Chairman of the Board, the Chairman or the Chief Executive
Officer, or the President and Chief Operating Officer and shall be called by the
Secretary at the request in writing of a majority of
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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.
Section 4. NOTICE OF STOCKHOLDERS' MEETINGS. A written, printed or
typewritten notice of each annual or special meeting of the stockholders,
stating the place, time and date and, if it is for a special meeting, the
purpose or purposes thereof, shall be delivered or mailed to each stockholder of
record entitled to vote at such meeting or entitled to notice thereof. If
mailed, such notice shall be addressed to such stockholder's last known address
as the same appears on the records of the Corporation. Such notices for each
annual or special meeting shall be so delivered or mailed not more than 60 nor
less than 10 days before the date fixed for the meeting. In the event of the
transfer of shares after notice has been given and prior to the holding of the
meeting, it shall not be necessary to serve notice upon the transferee. If a
meeting is adjourned to another time or place and such adjournment is for 30
days or less and no new record date is fixed for the adjourned meeting, no
further notice as to such adjourned meeting need be given if the time and place
to which the meeting is adjourned are fixed and announced at such meeting. If
the adjournment is for more than 30 days, or after the adjournment a new record
date is fixed for the adjourned meeting, a notice of the adjourned meeting shall
be given to each stockholder of record entitled to vote at the meeting or
entitled to notice thereof.
Section 5. WAIVER OF NOTICE. Any stockholder entitled to notice of any
stockholders' meeting may, in person or by proxy, either before, at or after
such meeting, waive notice in writing, which writing shall be filed with or
entered upon the records of the meeting, of any or all of the provisions of law,
the Certificate of Incorporation of the Corporation, as amended and restated
from time to time (the "Certificate of Incorporation"), or these Bylaws as to
notice of such meeting, including the time, place and purpose thereof, or as to
any irregularities in such notice or arising in connection therewith or with the
giving thereof and shall thereby validate the proceedings at such meeting as
fully as though all of the requirements waived had been duly met in their
respective cases. The attendance of any stockholder at any such meeting, in
person or by proxy, without protesting the
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lack of a proper notice of such meeting shall be deemed to be a waiver of notice
of such meeting.
Section 6. 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 Certificate of Incorporation, these
Bylaws 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), 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. At any such
adjourned meeting at which a quorum is present any business may be transacted
which might have been transacted at the meeting as originally called.
Section 7. 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
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 other
change, conversion or exchange of stock or for the purpose of any other lawful
action, the Board of Directors may fix, in advance, a record date, which shall
not be more than 60 days nor less than 10 days before the date of such meeting,
nor more than 60 days prior to any other action. A determination of 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 of Directors may
fix a new record date for the adjourned meeting.
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Section 8. VOTING.
(a) STOCKHOLDERS ENTITLED TO VOTE. Each stockholder shall, at each
meeting of the stockholders, be entitled to vote in person or by proxy each
share or fractional share of the stock of the Corporation having voting rights
on the matter in question and which shall have been held by him or her and
registered in his name on the books of the Corporation on the date fixed
pursuant to Section 7 of this Article II as the record date for the
determination of stockholders entitled to notice of and to vote at such meeting.
(b) VOTING BY ANOTHER CORPORATION. Subject to the provisions of the
Certificate of Incorporation and subsection (a) of this Section 8, the chairman
of the board of directors, the president, any vice president, the secretary, the
treasurer or any other duly elected officer or duly authorized agent, proxy or
attorney-in-fact of another corporation holding shares of this Corporation and
entitled to vote at any meeting shall conclusively be deemed to have authority
to vote such shares and to execute proxies and written waivers or consents in
relation thereto, whether such shares are held in a fiduciary capacity or
otherwise, unless before a vote is taken or a consent or waiver is acted upon, a
certified copy of the bylaws, or a resolution of the board of directors, of the
corporation holding such shares is delivered to the Secretary of this
Corporation, showing that such authority does not exist or is vested in some
other officer or person. A person executing such writing or so acting as one of
such officers, agents, proxies or attorneys-in-fact of such corporation shall,
for the purposes of this subsection (b), be prima facie deemed to be duly
elected (if applicable) or appointed, qualified and acting as such officer,
agent, proxy or attorney-in-fact and to be fully authorized.
(c) VOTING BY PROXY. A stockholder may, through a written proxy,
authorize another person (who need not be a stockholder) to vote in the
stockholder's stead and to represent the stockholder at one or more
stockholders' meetings, whether annual or special meetings, or any adjournment
thereof, but such instrument must be filed with the Secretary of this
Corporation before the convening of the meeting and before the person authorized
thereby may
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exercise the rights thereunder. A vote in accordance with the terms of a duly
filed proxy shall be valid notwithstanding the previous death of the principal
or the revocation of the appointment or the transfer of the share on which the
vote was given, unless notice in writing of such death, revocation or transfer
shall have been received by the Secretary of this Corporation, or such
revocation is made in open meeting, before the vote is taken or the authority
granted is otherwise exercised; PROVIDED, HOWEVER, that no proxy hereafter made
shall be valid after the expiration of 3 years after the date of its execution
unless the stockholder executing it shall have specified therein the length of
time it is to continue in force. A telegram, cablegram, wireless message or
photograph, photostatic or equivalent reproduction of a writing appointing a
proxy or proxies shall be a sufficient writing. A stockholder, without affecting
any vote previously taken, may revoke such writing not otherwise revoked by
giving notice to this Corporation in writing or in open meeting.
Section 9. INSPECTORS OF ELECTION. The Board of Directors, in advance
of any meeting of stockholders, may appoint 3 inspectors to act at the meeting.
If inspectors are not so appointed, the person acting as the chairman of any
meeting of stockholders may appoint such inspectors. If any person so appointed
fails to appear or act, the vacancy may be filled by appointment made by the
Board of Directors in advance of the meeting or at the meeting by the person
acting as chairman thereat. The inspectors so appointed, if any, shall (i)
determine the number of shares outstanding, the voting rights with respect to
the shares outstanding, the shares represented at the meeting, the existence of
a quorum, and the authenticity, validity, and effect of proxies, (ii) receive
votes, ballots, consents, waivers, or releases, (iii) hear and determine all
challenges and questions arising in connection with the vote, (iv) count and
tabulate all votes, consents, waivers, and releases, (v) determine and announce
the result, and (vi) do such acts as are proper to conduct the election or vote
with fairness to all stockholders. The decision, act or certificate of a
majority of the inspectors shall be effective in all respects as the decision,
act or certificate of all 3 inspectors. If requested to do so by the person
acting as chairman of the meeting, the inspectors shall make a report in writing
of any challenge, question or matter determined by them, and make and execute a
certificate of any facts found by them. The certificate
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of the inspectors shall be prima facie evidence of the facts therein stated and
of the vote as certified by them.
Section 10. ORGANIZATION. At each meeting of the stockholders, the
Chairman of the Board, or in his absence or by his or her request, the Chairman
or the Chief Executive Officer, or in his or her absence or by his or her
request, the President and Chief Operating Officer, or in his or her absence or
by his or her request, any Vice President, or, in the absence of the Chairman of
the Board, the Chairman or the Chief Executive Officer, the President and Chief
Operating Officer and a Vice President, a chairman chosen by stockholders
representing a majority of the voting power present in person or by proxy and
entitled to vote shall act as chairman, and the Secretary of this Corporation,
or, if the Secretary of this Corporation not be present, an Assistant Secretary,
or if neither the Secretary nor an Assistant Secretary be present, any person
whom the chairman of the meeting shall appoint, shall act as secretary of the
meeting.
Section 11. ADVANCE NOTICE OF STOCKHOLDER PROPOSALS AND STOCKHOLDER
NOMINATIONS OF DIRECTORS. In order to properly submit any business to, or
nominate any person for election to the Board of Directors at, an annual meeting
of stockholders, a stockholder must give timely notice in writing to the
Secretary of the Corporation. 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 (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 applicable 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
less than a reasonable time, as determined by the Board of Directors, prior to
the date of the applicable annual meeting. With respect to any special meeting
of stockholders, written notice of a stockholder's proposal to submit business
or to nominate a person for election to the Board of Directors must be delivered
in the manner specified above and not later than the close of business on the
seventh day following the earlier of (a) the day on which notice of such meeting
is first given to stockholders or (b) the day on which public disclosure of the
meeting is made.
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The Secretary of the Corporation 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.
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) any material interest of such stockholder in the business to be
submitted, 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 above to be given by a
stockholder who intends to submit business at a meeting of stockholders, if the
business to be submitted is the nomination of a person or persons for election
to the Board of Directors then such stockholder's notice 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.
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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 of
the Corporation all such information pertaining to such person that is required
to be set forth in a stockholder's notice of nomination.
Notwithstanding the foregoing provisions of this Section 11, 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 pursuant thereto.
ARTICLE III
DIRECTORS
Section 1. POWERS AND NUMBER OF DIRECTORS. The affairs, property and
business of the Corporation shall be conducted and managed by a Board of
Directors consisting of not less than 1 nor more than 15 directors. The exact
number of directors shall be determined from time to time by resolution or
resolutions adopted by affirmative vote of a majority of the entire Board of
Directors which the Corporation would have if there were no vacancies. The
directors shall be divided into three classes, designated Class I, Class II and
Class III, as provided in the Certificate of Incorporation. The terms of
directors shall be as provided in the Certificate of Incorporation.
Section 2. ELECTION OF DIRECTORS. At each meeting of the stockholders
for the election of directors, the persons receiving the greatest number of
votes shall be the directors. Directors need not be stockholders.
Section 3. NOMINATIONS. Nominations of persons for election to the
Board of Directors may be made by the Board of Directors, any committee thereof,
or by any stockholders entitled to vote for the election of directors at the
applicable meeting of stockholders. Nominations made by stockholders must be
made in accordance with the provisions of Section 11 of Article II of these
Bylaws. Notice of nominations which are proposed by the Board of Directors shall
be given on behalf of the Board of Directors by the chairman of the meeting. The
chairman of the meeting may, if the facts warrant, determine that a nomination
was not
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made in accordance with the foregoing procedure, and if the chairman should so
determine, the chairman shall so declare at the meeting and the defective
nomination shall be disregarded.
Section 4. RESIGNATIONS. Any director of the Corporation may resign at
any time by giving written notice to the Chairman of the Board, the Chairman or
the Chief Executive Officer, the President and Chief Operating Officer or the
Secretary of the Corporation. Such resignation shall take effect at the time
specified therein, and if no time is specified, at the time of its receipt.
Unless otherwise specified therein, the acceptance of such resignation shall not
be necessary to make it effective.
Section 5. VACANCIES AND REMOVAL OF DIRECTORS. Vacancies in the Board
of Directors shall be filled, and directors may be removed, only as provided in
the Certificate of Incorporation.
Section 6. PLACE OF MEETING. The Board of Directors may hold any of its
meetings at the principal office of the Corporation or at such other place or
places as the Board of Directors (or the Chairman of the Board in the absence of
a determination by the Board of Directors) may from time to time designate.
Section 7. ANNUAL MEETING. An annual meeting of the Board of Directors
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. At its annual meeting, the Board of Directors shall organize itself and
elect the officers of the Corporation for the ensuing year, and may transact any
other business which may properly come before the meeting.
Section 8. REGULAR MEETINGS. Regular meetings of the Board of Directors
may be held without notice at such intervals, at such time and at such place as
shall from time to time be determined by resolution of the Board of Directors.
Section 9. SPECIAL MEETINGS. Special meetings of the Board of Directors
may be called at any time by the Chairman of the Board, the Chairman or the
Chief Executive
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Officer, the President and Chief Operating Officer or by a majority of directors
then in office to be held on such day and at such time and place as shall be
specified by the person or persons calling the meeting.
Section 10. NOTICE OF MEETING. Notice of each special meeting or, where
required, each regular meeting of the Board of Directors shall be given to each
director either by being mailed on at least the third day prior to the date of
the meeting or by being telegraphed, faxed or given personally or by telephone
on at least 24 hours notice prior to the date of meeting. Such notice shall
specify the place, the date and the hour of the meeting and, if it is for a
special meeting, the purpose or purposes for which the meeting is called. At any
meeting of the Board of Directors at which every director shall be present
(unless any director shall be so present solely to protest the validity or
legality of such meeting), even though without such notice, any business may be
transacted. Any acts or proceedings taken at a meeting of the Board of Directors
not validly called or constituted may be made valid and fully effective by
ratification at a subsequent meeting which shall be legally and validly called
or constituted. Notice of any regular meeting of the Board of Directors need not
state the purpose of the meeting and, at any regular meeting duly held, any
business may be transacted. If the notice of a special meeting shall state as a
purpose of the meeting the transaction of any business that may come before the
meeting, then at the meeting any business may be transacted, whether or not
referred to in the notice thereof. A written waiver of notice of a special or
regular meeting, signed by the person or persons entitled to such notice,
whether before or after the time stated therein, shall be deemed the equivalent
of such notice, and attendance of a director at a meeting shall constitute a
waiver of notice of such meeting except when the director attends the meeting
and prior to or at the commencement of such meeting protests the lack of proper
notice.
Section 11. QUORUM AND VOTING. At all meetings of the Board of
Directors, the presence of a majority of the directors then in office shall
constitute a quorum for the transaction of business. Except as otherwise
required by law, the Certificate of Incorporation, or these Bylaws, 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. If at any meeting of the Board of
Directors,
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there shall be less than a quorum present, a majority of the directors present
may adjourn the meeting from time to time until a quorum is obtained, and no
further notice thereof need be given other than by announcement at the adjourned
meeting. At all meetings of the Board of Directors, each director shall have one
vote.
Section 12. COMMITTEES. The Board of Directors, by resolution passed by
a majority of the entire board, may designate one or more committees of the
Board of Directors, each consisting of two or more directors. To the extent
provided in the resolution and permitted by law, the committee or committees
shall have and may exercise all powers and authority of the Board of Directors
in the management of the business and affairs of the Corporation and may
authorize the seal of the Corporation to be affixed to all papers that may
require it, but no committee shall have the power or authority to approve or
adopt, or recommend to the stockholders of the Corporation, any matter expressly
required by the DGCL to be submitted to stockholders for approval or adopt,
amend or repeal any provision of these Bylaws or the Certificate of
Incorporation. Any committee or committees shall have the name or names
determined from time to time by resolution adopted by the Board of Directors.
Any vacancy in a committee occurring from any cause whatsoever may be filled by
the Board of Directors. Each committee shall serve at the pleasure of the Board
of Directors and shall be subject to the control and direction of the Board of
Directors. Any such committee may act by a majority of its members at a meeting
of such committee. Any such committee shall keep written minutes of its meetings
and report the same to the Board of Directors at the next regular meeting of the
Board of Directors.
Section 13. COMPENSATION. The Board of Directors may, by resolution
passed by a majority of those in office, fix the compensation of directors for
service in any capacity and may fix fees for attendance at meetings and may
authorize the Corporation to pay the traveling and other expenses of directors
incident to their attendance at meetings, or may delegate such authority to a
committee of the Board of Directors.
Section 14. ACTION BY CONSENT. Any action required or permitted to be
taken at any meeting of the Board of Directors or of any committee thereof may
be taken without a meeting if a written consent thereto is signed by all
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members of the Board of Directors or of such committee, as the case may be, and
such written consent is filed with the minutes of proceedings of the Board of
Directors or such committee.
Section 15. PARTICIPATION IN MEETING BY TELEPHONE. Unless otherwise
provided by the Certificate of Incorporation or these Bylaws, members of the
Board of Directors or any committee thereof may participate in a meeting of the
Board of Directors or such committee by means of a 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
Section 15 shall constitute presence in person at such meeting.
ARTICLE IV
OFFICERS
Section 1. OFFICERS. The officers shall be a President, Secretary,
Treasurer and such other officers as the Board of Directors may appoint or elect
or provide by resolution from time to time. If the Corporation has a Chief
Executive Officer, the Chief Executive Officer, must be a member of the Board of
Directors. Any two or more of the offices may be held by the same person, but no
officer shall execute, acknowledge or verify any instrument in more than one
capacity, if such instrument is required by law or by the Restated Certificate
of Incorporation or Restated Bylaws to be executed, acknowledged or verified by
two or more officers.
Section 2. ELECTION AND TERM OF OFFICE. All of the above officers shall
be chosen by the Board of Directors and by the vote of the majority of the Board
of Directors at the regular annual meeting of the Board. The officers shall hold
office until the date of the next annual meeting of the Board of Directors or
until their respective successors are elected and qualified, provided, however,
that any officer may be removed from office with or without cause at any time by
a vote of at least two-thirds of the entire Board of Directors. If, for any
cause, there is no regular annual meeting of the Board of Directors, or if such
meeting is held and no one is elected or re-elected to one or more of the
offices, the omitted election may be held in the manner above described at any
other meeting of the Board of Directors if such meeting is duly called as a
special meeting for that purpose or if each member of the
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Board of Directors shall be present or shall waive in writing the call and
notice thereof. All other officers, assistant officers and agents of the
Corporation shall be elected or appointed by the Board of Directors and shall
hold office for such period, have such authority and perform such duties as the
Board of Directors may from time to time determine. The Board of Directors may
delegate to any officer the power to appoint any subordinate officers or agents.
Section 3. REMOVAL. Any officer of the Corporation may be removed from
office at any time, for or without cause, by a vote of a majority of the Board
of Directors. Any officer appointed not by the Board of Directors but by a
committee or officer to which the Board of Directors shall have delegated the
power of appointment may be removed, for or without cause, by the committee or
superior officer (including successors) who made the appointment, or by any
committee or officer upon whom such power of removal may be conferred by the
Board of Directors.
Section 4. RESIGNATIONS. Any officer may resign at any time by giving
written notice to the Chairman of the Board, the Chairman or the Chief Executive
Officer, the President and Chief Operating Officer, or the Secretary of the
Corporation. Any such resignation shall take effect at the time specified
therein, and if no time is specified, at the time of its receipt. Unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
Section 5. VACANCIES. Whenever a vacancy occurs in any office of the
Corporation for any cause, the vacancy may be filled for the unexpired term by
the vote of a majority of the Board of Directors present, if those present
constitute a quorum thereof.
ARTICLE V
DUTIES OF OFFICERS
Section 1. CHAIRMAN OF THE BOARD. If the Corporation has a Chairman of
the Board, then the Chairman of the Board shall preside at all meetings of the
shareholders and Board of Directors, shall sign the record of such meetings at
which the Chairman shall preside and shall have such other powers and duties as
may be prescribed by the Board of Directors.
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Section 2. CHIEF EXECUTIVE OFFICER. If the Corporation has a Chief
Executive Officer, the Chief Executive Officer shall exercise general
administrative leadership and direction of the Corporation in conformity with
actions and controls established and maintained by the Board of Directors. The
Chief Executive Officer shall, in compliance with the laws of the State of
Delaware, Restated Certificate of Incorporation and these Restated Bylaws, and
in concurrence with the actions of the Board, direct the activities of its
officers. The Chief Executive Officer shall have the power and authority to
execute on behalf of the Corporation any and all documents, contracts,
instruments, or other papers to which the signature of the Corporation is to be
attached; provided, however, a facsimile signature may be printed, engraved or
stamped on any approved document, contract, instrument, or other papers of the
Corporation. The Chief Executive Officer shall exercise the discretion of and
perform generally all of the duties incident to the Office of the Chief
Executive Officer, and such other and further duties as may be from time to time
required by the Board of Directors.
In the absence of the Chairman of the Board, or at the request thereof, the
Chief Executive Officer shall preside at meetings of the shareholders and the
Board of Directors, sign the record of such meetings at which the Chief
Executive Officer shall preside and shall have such other powers and duties as
may be prescribed by the Board of Directors.
In the absence of the Chief Executive Officer, another Director shall be
selected by those Directors present to serve as temporary Chairman, and shall be
authorized to sign the records of meetings at which such Director presides.
Section 3. PRESIDENT AND CHIEF OPERATING OFFICER. The President and
Chief Operating Officer shall be the chief operating officer of the Corporation
and shall, in compliance with the laws of Delaware, the Certificate of
Incorporation and these Bylaws, and in concurrence with the Chairman or the
Chief Executive Officer and the actions of the Board of Directors, direct the
activities of the officers of the Corporation. Except as provided for by
resolution of the Board of Directors or by memorandum from the Chairman or the
Chief Executive Officer, the President and Chief Operating Officer shall have
the power and
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authority to execute on behalf of the Corporation any and all approved
documents, contracts, instruments, or other papers to which the signature of the
Corporation is to be attached; provided, HOWEVER, that a facsimile of his or her
signature may be printed, engraved or stamped on any approved document,
contract, instrument or other paper of the Corporation. The President and Chief
Operating Officer shall exercise the discretion of and perform generally all of
the duties incident to the office of President and Chief Operating Officer and
such other and further duties as are conferred upon him or her by these Bylaws
or may be assigned to him or her from time to time by the Board of Directors or
the Chairman or the Chief Executive Officer.
Section 4. VICE PRESIDENTS. The Vice Presidents, who may be designated
Executive Vice President, Senior Vice President, Vice President or Associate
Vice President, shall have such powers and perform such duties as are conferred
upon them by these Bylaws or may be assigned to them from time to time by the
Chairman or the Chief Executive Officer or the President and Chief Operating
Officer and approved by the Board of Directors. The officer designated by the
President and Chief Operating Officer and approved by the Chairman or the Chief
Executive Officer shall act for the President and Chief Operating Officer upon
his or her absence or disability.
Section 5. GENERAL COUNSEL. The General Counsel shall furnish legal
counsel on corporate matters as required; render legal opinions to the Board of
Directors, the Chairman or the Chief Executive Officer, the President and Chief
Operating Officer and the other officers and employees as requested; interpret
all laws and regulations relating to the business of the Corporation; initiate
recommendations with respect to legislation affecting the business of the
Corporation; and shall perform such other and further duties as may be required
by the Board of Directors, the Chairman or the Chief Executive Officer or the
President and Chief Operating Officer.
Section 6. SECRETARY. The Secretary shall (i) issue notices and
maintain the official records of all meetings of the stockholders and the Board
of Directors and such records shall be attested by the Secretary or by such
other person as shall have acted as secretary of such meeting in the case of the
Secretary's absence for any reason, (ii)
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have charge of the seal, share or other security books of the Corporation, and
(iii) shall issue and attest all certificates of shares or other securities of
the Corporation; PROVIDED, HOWEVER, that a facsimile of his or her signature may
be printed, engraved or stamped on certificates for shares, bonds or other
securities of the Corporation when such certificates are countersigned by an
incorporated transfer agent or registrar. In case a transfer agent or registrar
of the shares or other securities of the Corporation shall be duly appointed by
the Corporation, the Secretary may place in the charge of such transfer agent or
registrar the seal and share or other security books of the Corporation and such
transfer agent or registrar may perform in the Secretary's stead all duties in
connection with the shares of the Corporation. The Secretary shall have power
and authority to sign or attest on behalf of the Corporation any and all
approved documents, contracts, instruments or other papers where required in
carrying on the business of the Corporation; PROVIDED, HOWEVER, that a facsimile
of his or her signature may be printed, engraved or stamped on any approved
document, contract, instrument or other paper of the Corporation. The Secretary
shall perform such other and further duties as are conferred upon him or her by
these Bylaws or may be assigned to him or her from time to time by the Chairman
or the Chief Executive Officer or the President and Chief Operating Officer and
approved by the Board of Directors.
Section 7. TREASURER. The Treasurer shall (i) maintain custody of all
funds, securities and properties of the Corporation, (ii) direct the receipt and
deposit of all funds and securities and payment of all authorized disbursements,
(iii) direct the administration of all accounting activities of the Corporation,
(iv) furnish financial reports of the Corporation, as required, and (v) have the
power and authority to sign or attest on behalf of the Corporation any and all
approved documents, contracts, instruments, or other papers where required in
carrying on the business of the Corporation; PROVIDED, HOWEVER, that a facsimile
of his signature may be printed, engraved or stamped on any approved document,
contract, instrument or other paper of the Corporation. The Treasurer shall
perform such other and further duties as are conferred upon him or her by these
Bylaws or may be assigned to him or her from time to time by the Chairman or the
Chief Executive Officer or the President and Chief Operating Officer and
approved by the Board of Directors.
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Section 8. ASSISTANT SECRETARY. Any Assistant Secretary shall at all
times act as an assistant to the Secretary and have such powers and perform such
duties as are conferred upon him or her by these Bylaws or be assigned to him or
her from time to time by the Secretary and approved by the Chairman or the Chief
Executive Officer or the President and Chief Operating Officer. In case both the
Secretary and all Assistant Secretaries are at the same time absent or unable to
perform their duties, the Board of Directors may appoint a secretary pro tempore
with the power and duty to act as Secretary during such absence or disability of
the Secretary and the Assistant Secretaries.
Section 9. ASSISTANT TREASURER. Any Assistant Treasurer shall at all
times act as an assistant to the Treasurer and shall have powers and perform
such duties as are conferred upon him or her by these Bylaws or may be assigned
to him or her from time to time by the Treasurer and approved by the Chairman or
the Chief Executive Officer or the President and Chief Operating Officer.
Section 10. EXECUTION OF INSTRUMENTS. Any Vice President and any
assistant secretary or assistant treasurer shall have the power and authority to
sign any and all approved documents, contracts, instruments, or other papers in
connection with the operation of the business of the Corporation in addition to
the Chairman or the Chief Executive Officer, the President and Chief Operating
Officer, the Treasurer and the Secretary; PROVIDED, HOWEVER, the facsimile
signature of any of them may be printed, engraved or stamped on any approved
document, contract, instrument, or other paper of the Corporation.
Section 11. BOND OF OFFICERS AND EMPLOYEES. Any officer or employee of
the Corporation handling funds or negotiable instruments or any other property
of the Corporation shall furnish such bond or shall be covered by a blanket bond
in such amounts and with such surety and sureties as may be required by the
Board of Directors. The premium of any such bond shall be paid by the
Corporation.
ARTICLE VI
INDEMNIFICATION
Section 1. INDEMNIFICATION. The Corporation shall indemnify, to the
fullest extent permissible under the
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DGCL, or the indemnification provisions of any successor statute, any person,
and the heirs and personal representatives of such person, against any and all
judgments, fines, amounts paid in settlement and costs and expenses, including
attorneys' fees, actually and reasonably incurred by or imposed upon such
person, in connection with, or resulting from any claim, action, suit or
proceeding (civil, criminal, administrative or investigative) in which such
person is a party or is threatened to be made a party by reason of such person
being or having been a director, officer, employee or agent of the Corporation,
or of another corporation, joint venture, trust or other organization in which
such person serves as a director, officer, employee or agent at the request of
the Corporation, or by reason of such person being or having been an
administrator or a member of any board or committee of the Corporation or of any
such other organization, including, but not limited to, any administrator, board
or committee related to any employee benefit plan.
The Corporation may advance expenses incurred in defending a civil or
criminal action, suit or proceeding to any such director, officer, employee or
agent upon receipt of an undertaking by or on behalf of the director, officer,
employee or agent to repay such amount, if it shall ultimately be determined
that such person is not entitled to indemnification by the Corporation.
The foregoing right of indemnification and advancement of expenses
shall in no way be exclusive of any other rights of indemnification to which any
such person may be entitled, under any bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, and shall inure to the benefit of the
heirs and personal representatives of such person. Any repeal or amendment of
this Section 1 of Article VI by the Corporation shall be prospective only and
shall not adversely affect any right of protection of a person with respect to
any act or omission occurring prior to the time of such repeal or modification.
Section 2. RELIANCE ON BOOKS AND RECORDS. Each director and officer and
each 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 books of account or other records of the Corporation or of any of its
subsidiaries, or upon reports made to the Corporation or any of its
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subsidiaries by any officer of the Corporation or of a subsidiary or by an
independent certified public accountant or by an appraiser selected with
reasonable care by the Board of Directors or by any such committee.
Section 3. INSURANCE. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against
such person and incurred by such person in any such capacity, or arising out of
the person's status as such, whether or not the Corporation would have the power
to indemnify such person against such liability under the DGCL.
ARTICLE VII
SHARES
Section 1. CERTIFICATES OF SHARES. Each stockholder of the Corporation
whose shares are paid in full shall be entitled to a certificate or certificates
showing the number and class of shares registered in such stockholder's name on
the books of the Corporation. Certificates for the respective classes of shares
of the Corporation shall be issued in numerical order and signed in the name of
the Corporation by the Chairman of the Board, the Chairman or the Chief
Executive Officer or the President and Chief Operating Officer and the Secretary
or the Treasurer, or such other officers or persons as may be authorized by the
Board of Directors and permitted by applicable law. The signature of any of said
officers may be facsimile, engraved, stamped or printed when such certificates
are countersigned by an incorporated transfer agent or registrar. A full record
of each certificate as issued shall be entered on the stock record books of the
Corporation. No new certificate shall be issued until the former certificate for
the same number of shares shall have been surrendered and canceled, except as
provided for in Section 3 of this Article VII. 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
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she was such officer, transfer agent or registrar at the date of issue.
Section 2. TRANSFER OF SHARES. Transfers of shares in the Corporation
shall be made only on the books of the Corporation by the registered holder
thereof, his legal guardian, executor or administrator, or by his attorney
thereunto authorized by power of attorney duly executed and filed with the
Secretary or with a transfer agent appointed by the Board of Directors, and on
surrender of the certificate or certificates for such shares properly endorsed
or accompanied by properly executed stock powers and evidence of the payment of
all taxes imposed upon such transfer.
Section 3. LOST, STOLEN, DESTROYED OR MUTILATED CERTIFICATES. If any
share certificate in this Corporation becomes worn, defaced or mutilated, the
Secretary, upon presentation or surrender thereof, shall order the same
canceled, and shall issue a new certificate in lieu thereof. If any share
certificate is lost, stolen or destroyed, the Secretary shall issue a new
certificate in lieu thereof to the person entitled to such lost, stolen or
destroyed certificate upon receiving a bond of indemnity containing such terms
as the Board of Directors may reasonably require to protect the Corporation or
any person, firm or other corporation from loss, cost or damage resulting from
the issue of such new certificate.
Section 4. HOLDER OF RECORD. The Corporation shall be entitled to treat
the holder of record of any share or shares of the Corporation as the holder in
fact thereof, and accordingly shall not be bound to recognize any equitable or
other claim to, or interest in, such share on the part of any person, whether or
not the Corporation shall have express or other notice thereof, except as
expressly provided by the laws of Delaware.
Section 5. TRANSFER AGENTS AND REGISTRARS. The Board of Directors may
appoint, or revoke the appointment of, transfer agents and registrars and may
require all certificates for shares to bear the signatures of such transfer
agents and registrars, or any of them. The Board of Directors shall have
authority to make all such rules and regulations as it may deem expedient
concerning the issue, transfer, and registration of certificates for shares of
the Corporation.
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ARTICLE VIII
FISCAL YEAR
Section 1. FISCAL YEAR. The fiscal year of the Corporation shall be the
calendar year ending December 31, unless otherwise fixed by resolution of the
Board of Directors.
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ARTICLE IX
SEAL
Section 1. SEAL. The corporate seal shall be circular in form and shall
contain the name of the Corporation, the year of its creation and the words
"CORPORATE SEAL Delaware." Said seal may be used by causing it or a facsimile
thereof to be impressed or affixed or reproduced or otherwise.
ARTICLE X
MISCELLANEOUS
Section 1. CHECKS. All checks, drafts or other orders for the payment
of money, notes, or other evidences of indebtedness issued in the name of the
Corporation shall be signed by such officer or officers or agent or agents of
the Corporation, and in such manner, as shall be determined from time to time by
resolution of the Board of Directors.
Section 2. NOTICE AND WAIVER OF NOTICE. Except as otherwise expressly
provided herein, any notice required by these Bylaws to be given shall be
sufficient if given by depositing the same in a post office or letter box in a
sealed wrapper with first-class postage prepaid thereon and addressed to the
person entitled thereto at such person"s address, as the same appears upon the
books of the Corporation, or by faxing, telegraphing or cabling the same to such
person at such address; and such notice shall be deemed to be given at the time
it is faxed, telegraphed or cabled or at the time the mailing is received.
Whenever any notice is required to be given under the provisions of any law, or
under the provisions of the Certificate of Incorporation or these Bylaws, a
waiver thereof in writing, signed by the person or persons entitled to said
notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
ARTICLE XI
AMENDMENTS
Section 1. BY STOCKHOLDERS. Except as otherwise provided in the
Certificate of Incorporation, these Bylaws may be altered or amended at any
meeting of the stockholders by affirmative vote of holders of a majority of the
voting power of the shares entitled to vote thereon at such meeting.
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Section 2. BY DIRECTORS. Except as otherwise provided in the
Certificate of Incorporation, these Bylaws may be altered or amended at any
meeting of the Board of Directors by affirmative vote of a majority of the Board
of Directors.
Adopted: May 23, 2000
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