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Exhibit 3.2
BY-LAWS
OF
SLM HOLDING CORPORATION
(HEREINAFTER CALLED THE "CORPORATION")
ARTICLE I -- OFFICES
SECTION 1. REGISTERED OFFICE. The registered office of the Corporation
shall be in the City of Wilmington, County of New Castle, State of Delaware.
SECTION 2. OFFICES. The principal office of the Corporation shall be
located in the City and Jurisdiction as the Board of Directors may, from time to
time, determine. The Corporation may also have offices at such other places both
within and without the State of Delaware as the Board of Directors may from time
to time determine.
ARTICLE II -- MEETINGS OF STOCKHOLDERS
SECTION 1. PLACE OF MEETINGS. Meetings of the stockholders for the
election of directors or for any other purpose shall be held at such time and
place within the continental United States, either within or without the State
of Delaware, as shall be designated from time to time by the Board of Directors
or, in the case of a special meeting called pursuant to Section 3 of this
Article at the request in writing of the holders of at least one-third of the
capital stock of the Corporation issued and outstanding and entitled to vote at
an election of directors, as shall be designated by such stockholders or their
representative, and stated in the notice of the meeting or in a duly executed
waiver of notice thereof.
SECTION 2. ANNUAL MEETINGS. The Annual Meetings of Stockholders shall
be held on such date and at such time as shall be designated from time to time
by the Board of Directors and stated in the notice of the meeting, at which
meetings the stockholders shall elect by a plurality vote a Board of Directors,
and transact such other business as may properly be brought before the meeting.
Written notice of the Annual Meeting, stating the place, date and hour of the
meeting, shall be given to each stockholder entitled to vote at such meeting not
less than ten nor more than sixty days before the date of the meeting.
SECTION 3. SPECIAL MEETINGS. Unless otherwise prescribed by law or by
the Certificate of Incorporation, Special Meetings of Stockholders, for any
purpose or purposes, shall be called by the Secretary (i) at the direction of
either (x) the Chairman or (y) the Chief Executive
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Officer, if the Chief Executive Officer is a member of the Board of Directors,
or (ii) at the request in writing of either (x) a majority of the Board of
Directors or (y) the holders of at least one-third of the capital stock of the
Corporation issued and outstanding and entitled to vote at an election of
directors. Any such request shall state the purpose or purposes of the proposed
meeting. Written notice of a Special Meeting, stating the place, date and hour
of the meeting and purpose or purposes for which the meeting is called, shall be
given to each stockholder entitled to vote at such meeting not less than ten nor
more than sixty days before the date of the meeting.
SECTION 4. QUORUM. Except as otherwise provided by law or by the
Certificate of Incorporation, at all meetings of the stockholders, the holders
of a majority of the capital stock issued and outstanding and entitled to vote
thereat, present in person or represented by proxy, shall constitute a quorum
for the transaction of business. If, however, such quorum shall not be present
or represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally
noticed. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder entitled to vote at the
meeting.
SECTION 5. VOTING. Unless otherwise required by law, the Certificate of
Incorporation or these By-Laws, any question brought before any meeting of
stockholders shall be decided by the vote of the holders of a majority of the
stock represented and entitled to vote thereat. Each stockholder represented at
a meeting of stockholders shall be entitled to cast one vote for each share of
the capital stock entitled to vote thereat held by such stockholder, PROVIDED,
HOWEVER, that at all elections of directors of the Corporation, each holder of
record of shares of Common Stock on the relevant record date shall be entitled
to cast as many votes, in person or by proxy, which (except for this provision)
such holder would be entitled to cast for the election of directors with respect
to its shares of stock multiplied by the number of directors to be elected at
such election, and that such holder may cast all such votes for a single
director or may distribute them among the number of directors to be voted for,
or for any two or more of them as such holder sees fit. Such votes may be cast
in person or by proxy, but no proxy shall be voted on or after three years from
its date, unless such proxy provides for a longer period. The Board of
Directors, in its discretion, or the officer of the Corporation presiding at a
meeting of stockholders, in his discretion, may require that any votes cast at
such meeting shall be cast by written ballot.
SECTION 6. LIST OF STOCKHOLDERS ENTITLED TO VOTE. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare
and make, at least ten days before every meeting of stockholders, a complete
list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose germane to the meeting,
during ordinary
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business hours, for a period of at least ten days prior to the meeting, either
at a place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the
principal office of the Corporation. The list shall also be produced and kept at
the time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder of the Corporation who is present.
SECTION 7. STOCK LEDGER. The stock ledger of the Corporation shall be
the only evidence as to who are the stockholders entitled to examine the stock
ledger, the list required by Section 6 of this Article II or the books of the
Corporation, or to vote in person or by proxy at any meeting of stockholders.
SECTION 8. MEETING BUSINESS. No business shall be brought before any
meeting of shareholders unless it has been properly brought before the meeting
in accordance with the procedures set forth in these By-Laws; PROVIDED, HOWEVER,
that nothing in this Section shall be deemed to preclude discussion by any
shareholder of any business properly brought before such meeting.
To be properly brought before an annual meeting, such business must be
either (a) specified in the notice of meeting (or any supplement thereto) given
by or at the direction of the Board of Directors (or any duly authorized
committee thereof), (b) otherwise properly brought before the annual meeting by
or at the direction of the Board of Directors (or any duly authorized committee
thereof), or (c) otherwise brought before the annual meeting by any shareholder
of the Corporation who is a shareholder of record on the date of the giving of
the notice provided for in Section 2 of this Article and on the record date for
the determination of shareholders entitled to vote at the such annual meeting.
To be properly brought before an annual meeting, such business also must be a
proper subject for action by shareholders, provided that the law of Delaware
shall govern whether such business is a proper subject for action by
shareholders.
In addition to any other applicable requirements, for business to be
properly brought before an annual meeting by a shareholder, the shareholder must
have given timely notice thereof in proper written form to the Secretary of the
Corporation. To be timely, a shareholder's notice must be delivered to or mailed
and received at the principal executive offices of the Corporation not less than
thirty (30) nor more than ninety (90) days prior to the anniversary date of the
immediately preceding annual meeting; PROVIDED, HOWEVER, that in the event that
the annual meeting is called for a date that is not within thirty (30) days
before or after such anniversary date, notice by the shareholder in order to be
timely must be so received not later than the close of business on the tenth day
following the day on which notice of the date of such annual meeting was mailed.
When a date is set for the determination of the timeliness of a shareholder's
notice, such date shall apply to any adjournment of such meeting. To be in
proper written form, a shareholder's notice to the Secretary must set forth as
to each matter such shareholder proposes to bring before the annual meeting (a)
a brief description of the business desired to be brought before the annual
meeting and the reasons for conducting such business at the annual meeting, (b)
the name and record address such shareholder, (c) the number of shares of the
Corporation which are owned (beneficially or of record) by such
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shareholder, (d) a description of all arrangements or understandings between
such shareholder and any other person or persons (including their names) in
connection with the proposal of such business by such shareholder and any
material interest of such shareholder in such business, and (e) a representation
that such shareholder intends to appear in person or by proxy at the annual
meeting to bring such business before the meeting. This provision shall not
prevent the consideration and approval or disapproval at the annual meeting of
the reports of officers and committees, but in connection with such reports no
new business shall be acted upon at such annual meeting unless brought before
the meeting in accordance with the procedures set forth in this Section.
The business conducted at any special meeting of shareholders shall be
limited to the purposes stated in the notice of such special meeting.
The Chairman shall determine the order of business and the procedure at
any shareholder meeting, including such regulation of the manner of voting and
the conduct of discussion as seem to the Chairman in order and not inconsistent
with these By-Laws. If the Chairman determines that business was not properly
brought before the meeting in accordance with these By-Laws, the Chairman shall
so declare and such business shall not be conducted.
SECTION 9. BOARD NOMINATIONS. Only persons who are nominated in
accordance with the following procedures shall be eligible for election as
directors at any annual meeting of shareholders. Nominations of persons for
election to the Board of Directors may be made at any annual meeting of
shareholders (a) by or at the direction of the Board of Directors (or any duly
authorized committee thereof), or (b) by any shareholder of the Corporation who
is a shareholder of record on the date of the giving of the notice provided for
in Section 2 of this Article II and on the record date for the determination of
shareholders entitled to vote at such annual meeting.
In addition to any other applicable requirements, for a nomination to
be made by a shareholder, the shareholder must have given timely notice thereof
in proper written form to the Secretary of the Corporation. To be timely, a
shareholder's notice must be delivered to or mailed and received at the
principal executive offices of the Corporation not less than thirty (30) nor
more than ninety (90) days prior to the anniversary date of the immediately
preceding annual meeting; provided, however, that in the event that the annual
meeting is called for a date that is not within thirty (30) days before or after
such anniversary date, notice by the shareholder in order to be timely must be
so received not later than the close of business on the tenth day following the
day on which notice of the date of such annual meeting was mailed. When a date
is set for the determination of the timeliness of a shareholder's notice, such
date shall apply to any adjournment of such meeting. To be in proper written
form, a shareholder's notice to the Secretary must set forth (a) as to each
person whom such shareholder proposes to nominate for election as a director (i)
the name, age, business address and residence address of the person, (ii) the
principal occupation or employment of the person and the purported basis for
such person's eligibility to serve on the Board of Directors, if elected, (iii)
the number of shares of the Corporation which are owned beneficially or of
record by the person and (iv) any other information relating to the person that
would be
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required by law to be disclosed in a proxy statement or in other filings
required to be made in connection with solicitations of proxies for election of
directors, including information required pursuant to Section 14 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and the rules
and regulations promulgated thereunder; and (b) as to the shareholder giving the
notice (i) the name and record address of such shareholder, (ii) the number of
shares of the Corporation which are owned beneficially or of record by such
shareholder, (iii) a description of all arrangements or understandings between
such shareholder and each proposed nominee and any other person or persons
(including their names) pursuant to which the nomination(s) are to be made by
such shareholder, (iv) a representation that such shareholder intends to appear
in person or by proxy at the annual meeting to nominate the persons named in its
notice and (v) any other information relating to such shareholder that would be
required by law to be disclosed in a proxy statement or in other filings
required to be made in connection with solicitations of proxies for election of
directors, including information required pursuant to Section 14 of the Exchange
Act and the rules and regulations promulgated thereunder. Such notice must be
accompanied by a written consent of each proposed nominee to being named as a
nominee and to serve as a director if elected.
If the Chairman determines that a nomination was not properly brought
before the meeting in accordance with these By-Laws, the Chairman shall so
declare and such defective nomination shall be disregarded.
ARTICLE III -- DIRECTORS
SECTION 1. NUMBER OF DIRECTORS. Subject to the provisions of the
Corporation's Certificate of Incorporation, the number of directors of the
Corporation shall be fixed from time to time by a majority vote of the directors
then in office.
SECTION 2. ELECTION OF DIRECTORS. Except as provided in Section 3 of
this Article, directors shall be elected by a plurality of the votes cast at
Annual Meetings of Stockholders, and each director so elected shall hold office
until the succeeding Annual Meeting (or special meeting in lieu thereof) and
until his successor is duly elected and qualified, or until his earlier
resignation or removal. Any director may resign at any time upon notice to the
Corporation. Such resignation shall take effect at the time specified therein
or, if the time be not specified, upon the receipt thereof and, unless otherwise
specified therein, the acceptance of such resignation shall not be necessary to
make it effective. Directors need not be stockholders of the Corporation.
SECTION 3. VACANCIES. Any vacancy on the Board of Directors resulting
from an increase in the number of directors or otherwise, may be filled by a
majority vote of the directors then in office, even if the directors in office
constitute fewer than a quorum.
SECTION 4. DUTIES AND POWERS. The business of the Corporation shall be
managed by or under the direction of the Board of Directors, which may exercise
all such powers of the Corporation and do all such lawful acts and things as are
not by statute or by the Certificate of Incorporation or by these By-Laws
directed or required to be exercised or done by the stockholders.
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SECTION 5. MEETINGS. The Board of Directors of the Corporation may hold
meetings, both regular and special, either within or without the State of
Delaware. Regular meetings of the Board of Directors may be held at such time
and at such place as may from time to time be determined by the Board of
Directors. Special meetings of the Board of Directors shall be called by the
Secretary (i) at the direction of (x) the Chairman or (y) the Chief Executive
Officer, if the Chief Executive Officer is a member of the Board of Directors,
or (ii) at the written request of a majority of the entire Board of Directors.
Notice of a meeting of the Board of Directors, stating the place, date and hour
of the meeting, shall be given to each director either by mail not less than
forty-eight (48) hours before the date of such meeting, by telephone or by
telegram or facsimile transmission not less than twenty-four (24) hours before
the date of such meeting. A waiver of such notice by any director or directors,
in writing, 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.
SECTION 6. QUORUM. Except as may be otherwise specifically provided by
law, the Certificate of Incorporation or these By-Laws, at all meetings of the
Board of Directors, a majority of the entire Board of Directors shall constitute
a quorum for the transaction of business, and the act of a majority of the
directors present at any meeting at which there is a quorum shall be the act of
the Board of Directors. If a quorum shall not be present at any meeting of the
Board of Directors, the directors present thereat may adjourn the meeting from
time to time, without notice other than announcement at the meeting, until a
quorum shall be present.
SECTION 7. ACTIONS OF BOARD. Unless otherwise provided by the
Certificate of Incorporation or these By-Laws, any action required or permitted
to be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting, if all of the members of the Board of Directors
or committee, as the case may be, consent thereto in writing, and the writing or
writings, setting forth the action so taken, are filed with the minutes of
proceedings of the Board of Directors or committee.
SECTION 8. MEETINGS BY MEANS OF CONFERENCE TELEPHONE. Unless otherwise
provided by the Certificate of Incorporation or these By-Laws, members of the
Board of Directors of the Corporation, or of 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 8 shall constitute presence in person at such
meeting.
SECTION 9. COMMITTEES. The Board of Directors shall adopt resolutions
establishing the following committees: (i) Executive, (ii) Audit, (iii)
Nominations and Board Affairs and (iv) Compensation and Personnel. In addition,
the Board of Directors may, by resolution passed by a majority of the entire
Board of Directors, designate one or more additional committees. Each committee
shall consist of one or more of the directors of the Corporation. The Board of
Directors may designate one or more directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting of
any such
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committee. In the absence or disqualification of a member of a committee, and in
the absence of a designation by the Board of Directors of an alternate member to
replace the absent or disqualified member, 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 member of the Board of
Directors to act at the meeting in the place of any absent or disqualified
member. Any committee, to the extent allowed by law and provided in the
resolution establishing such committee, shall have and may exercise all the
powers and authority of the Board of Directors in the management of the business
and affairs of the Corporation. Each committee shall keep regular minutes and
report to the Board of Directors when required.
SECTION 10. COMPENSATION. The directors may be paid their expenses,
if any, of attendance at each meeting of the Board of Directors and may be
paid a fixed sum or a fixed number of shares of the Corporation's stock for
attendance at each meeting of the Board of Directors and/or as compensation
for service as director. No such payment shall preclude any director from
serving the Corporation in any other capacity and receiving compensation
therefor. Members of special or standing committees may be allowed like
compensation for attending committee meetings.
SECTION 11. INTERESTED DIRECTORS. No contract or transaction between
the Corporation and one or more of its directors or officers, or between the
Corporation and any other corporation, partnership, association, or other
organization in which one or more of its directors or officers are directors or
officers, or have a financial interest, shall be void or voidable solely for
this reason, or solely because the director or officer is present at or
participates in the meeting of the Board of Directors or committee thereof which
authorizes the contract or transaction, or solely because his or their votes are
counted for such purpose if (i) the material facts as to his or their
relationship or interest and as to the contract or transaction are disclosed or
are known to the Board of Directors or the committee, and the Board of Directors
or committee in good faith authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested directors, even though the
disinterested directors be less than a quorum; or (ii) the material facts as to
his or their relationship or interest and as to the contract or transaction are
disclosed or are known to the stockholders entitled to vote thereon, and the
contract or transaction is specifically approved in good faith by vote of the
stockholders; or (iii) the contract or transaction is fair as to the Corporation
as of the time it is authorized, approved or ratified, by the Board of
Directors, a committee thereof or the stockholders. Common or interested
directors may be counted in determining the presence of a quorum at a meeting of
the Board of Directors or of a committee which authorizes the contract or
transaction.
SECTION 12. QUALIFICATION OF DIRECTORS. Notwithstanding any other
provision of these By-Laws, (i) the Board of Directors shall consist of a
majority of Independent directors, (ii) the Executive Committee of the Board of
Directors shall consist of a majority of Independent directors, and (iii) the
Audit, Nominations and Board Affairs and Compensation and Personnel Committees
of the Board of Directors shall consist solely of Independent directors. For
purposes hereof, a director will not generally be considered Independent if he
or she: (a) has
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been employed by the Corporation or one of its affiliates in an executive
capacity; (b) is an employee or owner of a firm that is one of the Corporation's
or its affiliates' paid advisers or consultants; (c) is employed by a
significant customer or supplier; (d) has a personal services contract with the
Corporation or one of its affiliates; (e) is employed by a foundation or
university that receives significant grants or endowments from the Corporation
or one of its affiliates; (f) is a relative of an executive of the Corporation
or one of its affiliates; (g) is part of an interlocking directorate in which an
executive officer of the Corporation serves on the board of another corporation
that employs the director; or (h) is an employee of a firm that directly
competes against the Corporation or one of its affiliates.
ARTICLE IV -- OFFICERS
SECTION 1. GENERAL. The officers of the Corporation shall be chosen by
the Board of Directors and shall be a Chairman of the Board (who must be a
director), a Chief Executive Officer, a General Counsel, a Secretary and a
Treasurer. The Board of Directors, in its discretion, may also choose a
President and one or more Vice Presidents, Assistant Secretaries, Assistant
Treasurers and other officers. Any number of offices may be held by the same
person, unless otherwise prohibited by law, the Certificate of Incorporation or
these By-Laws. The officers of the Corporation need not be stockholders of the
Corporation nor, except in the case of the Chairman of the Board of Directors,
need such officers be directors of the Corporation.
SECTION 2. ELECTION. The Board of Directors at its first meeting held
after each Annual Meeting of Stockholders shall elect the officers of the
Corporation who shall hold their offices for such terms and shall exercise such
powers and perform such duties as shall be determined from time to time by the
Board of Directors; and all officers of the Corporation shall hold office until
their successors are chosen and qualified, or until their earlier resignation or
removal. Any officer elected by the Board of Directors may be removed at any
time by the affirmative vote of a majority of the Board of Directors. Any
vacancy occurring in any office of the Corporation shall be filled by the Board
of Directors. The salaries of all officers of the Corporation shall be fixed by
the Board of Directors.
SECTION 3. VOTING SECURITIES OWNED BY THE CORPORATION. Powers of
attorney, proxies, waivers of notice of meeting, consents and other instruments
relating to securities owned by the Corporation may be executed in the name of
and on behalf of the Corporation by the Chief Executive Officer or the General
Counsel or such other authorized officer of the Corporation, and any such
officer may, in the name of and on behalf of the Corporation, take all such
action as any such officer may deem advisable to vote in person or by proxy at
any meeting of security holders of any corporation in which the Corporation may
own securities and at any such meeting shall possess and may exercise any and
all rights and powers incident to the ownership of such securities and which, as
the owner thereof, the Corporation might have exercised and possessed if
present. The Board of Directors may, by resolution, from time to time confer
like powers upon any other person or persons.
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SECTION 4. CHAIRMAN OF THE BOARD OF DIRECTORS. The Chairman of the
Board of Directors shall preside at all meetings of the stockholders and of the
Board of Directors. The Chairman of the Board of Directors shall also perform
such other duties and may exercise such other powers as from time to time may be
assigned to him by these By-Laws or by the Board of Directors.
SECTION 5. CHIEF EXECUTIVE OFFICER. The Chief Executive Officer shall,
subject to the control of the Board of Directors and the Chairman of the Board
of Directors, have general supervision of the business of the Corporation and
shall see that all orders and resolutions of the Board of Directors are carried
into effect. He shall execute all bonds, mortgages, contracts and other
instruments of the Corporation requiring a seal, under the seal of the
Corporation, except where required or permitted by law to be otherwise signed
and executed and except that the other officers of the Corporation may sign and
execute documents when so authorized by these By-Laws, the Board of Directors or
the Chief Executive Officer. In the absence or disability of the Chairman of the
Board of Directors, the Chief Executive Officer shall preside at all meetings of
the stockholders and the Board of Directors. The Chief Executive Officer shall
also perform such other duties and may exercise such other powers as from time
to time may be assigned to him by these By-Laws or by the Board of Directors.
SECTION 6. VICE PRESIDENTS. At the request of the Chief Executive
Officer or in his absence, or in the event of his inability or refusal to act, a
Vice President or the Vice Presidents if there is more than one (in the order
designated by the Board of Directors) shall perform the duties of the Chief
Executive Officer, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the Chief Executive Officer. Each Vice
President shall perform such other duties and have such other powers as the
Board of Directors from time to time may prescribe. If there be no Vice
President, the Board of Directors shall designate the officer of the Corporation
who, in the absence of the Chief Executive Officer, or in the event of the
inability or refusal of the Chief Executive Officer to act, shall perform the
duties of the Chief Executive Officer, and when so acting, such officer shall
have all the powers of and be subject to all the restrictions upon the Chief
Executive Officer.
SECTION 7. GENERAL COUNSEL. The General Counsel shall (a) be the
principal consulting officer of the Corporation for all legal matters; (b) be
responsible for and direct all counsel, attorneys, employees and agents in the
performance of all legal duties and services for and on behalf of the
Corporation; (c) perform such other duties and have such other powers as are
ordinarily incident to the office of the General Counsel; and (d) perform such
other duties as from time to time may be assigned to him by the Chief Executive
Officer or by the Board of Directors.
SECTION 8. SECRETARY. The Secretary shall attend all meetings of the
Board of Directors and all meetings of stockholders and record all the
proceedings thereat in a book or books to be kept for that purpose; the
Secretary shall also perform like duties, when required, for the committees of
the Board of Directors. The Secretary shall give, or cause to be given, notice
of all meetings of the stockholders and special meetings of the Board of
Directors, and shall
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perform such other duties as may be prescribed by the Board of Directors or
Chief Executive Officer, under whose supervision he shall be. If the Secretary
shall be unable or shall refuse to cause to be given notice of all meetings of
the stockholders and special meetings of the Board of Directors, and if there be
no Assistant Secretary, then either the Board of Directors or the Chief
Executive Officer may choose another officer to cause such notice to be given.
The Secretary shall have custody of the seal of the Corporation and the
Secretary or any Assistant Secretary, if there be one, shall have authority to
affix the same to any instrument requiring it, and when so affixed, it may be
attested by the signature of the Secretary or by the signature of any such
Assistant Secretary. The Board of Directors may give general authority to any
other officer to affix the seal of the Corporation and to attest the affixing by
his signature. The Secretary shall see that all books, reports, statements,
certificates and other documents and records required by law to be kept or filed
are properly kept or filed, as the case may be.
SECTION 9. TREASURER. The Treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be
ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the Chief Executive Officer and the Board of
Directors, at its regular meetings, or when the Board of Directors so requires,
an account of all his transactions as Treasurer and of the financial condition
of the Corporation. If required by the Board of Directors, the Treasurer shall
give the Corporation a bond in such sum and with such surety or sureties as
shall be satisfactory to the Board of Directors for the faithful performance of
the duties of his office and for the restoration to the Corporation, in case of
his death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the Corporation.
SECTION 10. ASSISTANT SECRETARIES. Except as may be otherwise provided
in these By-Laws, Assistant Secretaries, if there be any, shall perform such
duties and have such powers as from time to time may be assigned to them by the
Board of Directors, the Chief Executive Officer, or the Secretary, and in the
absence of the Secretary or in the event of his disability or refusal to act,
shall perform the duties of the Secretary, and when so acting, shall have all
the powers of and be subject to all the restrictions upon the Secretary.
SECTION 11. ASSISTANT TREASURERS. Assistant Treasurers, if there be
any, shall perform such duties and have such powers as from time to time may be
assigned to them by the Board of Directors, the Chief Executive Officer, or the
Treasurer, and in the absence of the Treasurer or in the event of his disability
or refusal to act, shall perform the duties of the Treasurer, and when so
acting, shall have all the powers of and be subject to all the restrictions upon
the Treasurer. If required by the Board of Directors, an Assistant Treasurer
shall give the Corporation a bond in such sum and with such surety or sureties
as shall be satisfactory to the Board of Directors for the faithful performance
of the duties of his office and for the restoration to the Corporation, in case
of his death, resignation, retirement or
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removal from office, of all books, papers, vouchers, money and other property of
whatever kind in his possession or under his control belonging to the
Corporation.
SECTION 12. OTHER OFFICERS. Such other officers as the Board of
Directors may choose shall perform such duties and have such powers as from time
to time may be assigned to them by the Board of Directors. The Board of
Directors may delegate to any other officer of the Corporation the power to
choose such other officers and to prescribe their respective duties and powers.
SECTION 13. EMPLOYEE CONDUCT. No officer or employee shall engage,
directly or indirectly, in any personal business transaction or private
arrangement for personal profit which accrues from or is based upon his official
position or authority or upon confidential information which he gains by reason
of such position or authority, and each officer and employee shall reasonably
restrict his personal business affairs so as to avoid conflicts of interest with
his official duties. No officer or employee shall divulge confidential
information to any unauthorized person, or release any such information in
advance of authorization for its release, nor shall he accept, directly or
indirectly, any valuable gift, favor or service from any person with whom he
transacts business on behalf of the Corporation.
SECTION 14. OUTSIDE OR PRIVATE EMPLOYMENT. No officer or employee shall
have any outside or private employment or affiliation with any firm or
organization incompatible with his concurrent employment by the Corporation, nor
shall he accept or perform any outside or private employment which the Chief
Executive Officer of the Corporation determines will interfere with the
efficient performance of his official duties.
ARTICLE V -- STOCK
SECTION 1. FORM OF CERTIFICATES. Every holder of stock in the
Corporation shall be entitled to have a certificate signed, in the name of the
Corporation (i) by the Chairman of the Board of Directors, the Chief Executive
Officer or a Vice President and (ii) by the Treasurer or an Assistant Treasurer,
or the Secretary or an Assistant Secretary of the Corporation, certifying the
number of shares owned by him in the Corporation.
SECTION 2. SIGNATURES. Any or all of the signatures on a certificate
may be a facsimile. In case any officer, transfer agent or registrar who has
signed or whose facsimile signature has been placed upon a certificate shall
have ceased to be such officer, transfer agent or registrar before such
certificate is issued, such certificate may be issued by the Corporation with
the same effect as if he were such officer, transfer agent or registrar at the
date of issue.
SECTION 3. LOST CERTIFICATES. The Board of Directors may direct a new
certificate to be issued in place of any certificate theretofore issued by the
Corporation alleged to have been lost, stolen or destroyed, upon the making of
an affidavit of that fact by the person claiming the certificate of stock to be
lost, stolen or destroyed. When authorizing such issue of a new certificate, the
Board of Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed
certificate, or his legal representative, to advertise the same in such manner
as the Board of Directors shall require
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and/or to give the Corporation a bond in such sum as it may direct as indemnity
against any claim that may be made against the Corporation with respect to the
certificate alleged to have been lost, stolen or destroyed.
SECTION 4. TRANSFERS. Stock of the Corporation shall be transferable in
the manner prescribed by law and in these By-Laws. Transfers of stock shall be
made on the books of the Corporation only by the person named in the certificate
or by his attorney lawfully constituted in writing and upon the surrender of the
certificate therefor, which shall be canceled before a new certificate shall be
issued.
SECTION 5. RECORD DATE. 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 express consent to 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 change, conversion or exchange of stock, or for the
purpose of any other lawful action, the Board of Directors may fix, in advance,
a record date, which shall not be more than sixty days nor less than ten days
before the date of such meeting, nor more than sixty days prior to any other
action. A determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
SECTION 6. BENEFICIAL OWNERS. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends, and to vote as such owner, and to hold liable
for calls and assessments a person registered on its books as the owner of
shares, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not
it shall have express or other notice thereof, except as otherwise provided by
law.
ARTICLE VI -- NOTICES
SECTION 1. NOTICES. Whenever written notice is required by law, the
Certificate of Incorporation or these By-Laws, to be given to any director,
member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his address
as it appears on the records of the Corporation, with postage thereon prepaid,
and such notice shall be deemed to be given at the time when the same shall be
deposited in the United States mail. Written notice may also be given personally
or by facsimile, telegram, telex or cable.
SECTION 2. WAIVERS OF NOTICE. Whenever any notice is required by law,
the Certificate of Incorporation or these By-Laws, to be given to any director,
member of a committee or stockholder, 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.
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ARTICLE VII -- GENERAL PROVISIONS
SECTION 1. DIVIDENDS. Dividends upon the capital stock of the
Corporation, subject to the provisions of the Certificate of Incorporation, if
any, may be declared by the Board of Directors at any regular or special
meeting, and may be paid in cash, in property, or in shares of the capital
stock. Before payment of any dividend, there may be set aside out of any funds
of the Corporation available for dividends such sum or sums as the Board of
Directors from time to time, in its absolute discretion, deems proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the Corporation, or for any proper
purpose, and the Board of Directors may modify or abolish any such reserve.
SECTION 2. ACQUISITION OF COMMON STOCK BY THE CORPORATION. Unless
approved by holders of a majority of the outstanding capital stock of the
Corporation then entitled to vote at an election of directors, the Corporation
shall not take any action that would result in the acquisition by the
Corporation, directly or indirectly, from any one person or "group" (as defined
in Section 13(d) of the Securities Exchange Act of 1934) of one percent or more
of the shares of Common Stock then outstanding, in one or a series of related
transactions, at a price in excess of the prevailing market price of such stock,
other than pursuant to a tender offer made to all holders of Common Stock or to
all holders of less than 100 shares of Common Stock.
SECTION 3. DISBURSEMENTS. All checks or demands for money and notes of
the Corporation shall be signed by such officer or officers or such other person
or persons as the Board of Directors may from time to time designate.
SECTION 4. FISCAL YEAR. The fiscal year of the Corporation shall be
fixed by resolution of the Board of Directors.
SECTION 5. CORPORATE SEAL. The corporate seal shall have inscribed
thereon the name of the Corporation, the year of its organization and the words
"Corporate Seal, Delaware". The seal may be used by causing it or a facsimile
thereof to be impressed or affixed or reproduced or otherwise.
ARTICLE VIII -- INDEMNIFICATION
SECTION 1. POWER TO INDEMNIFY IN ACTIONS, SUITS OR PROCEEDINGS OTHER
THAN THOSE BY OR IN THE RIGHT OF THE CORPORATION. Subject to Section 3 of this
Article VIII, the Corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation,
or is or was a director or officer of the Corporation serving at the request of
the Corporation as a director or officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in connection
with
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such action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of NOLO CONTENDERE or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
SECTION 2. POWER TO INDEMNIFY IN ACTIONS, SUITS OR PROCEEDINGS BY OR IN
THE RIGHT OF THE CORPORATION. Subject to Section 3 of this Article VIII, the
Corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or in
the right of the Corporation to procure a judgment in its favor by reason of the
fact that he is or was a director or officer of the Corporation, or is or was a
director or officer of the Corporation serving at the request of the Corporation
as a director or officer, employee or agent of another corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Corporation; except that no indemnification shall be made
in respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the Corporation unless and only to the extent that the
Court of Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
SECTION 3. AUTHORIZATION OF INDEMNIFICATION. Any indemnification under
this Article VIII (unless ordered by a court) shall be made by the Corporation
only as authorized in the specific case upon a determination that
indemnification of the director or officer is proper in the circumstances
because he has met the applicable standard of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Such determination shall be
made (i) by a majority vote of the directors who are not parties to such action,
suit or proceeding, even though less than a quorum, or (ii) if there are no such
directors, or if such directors so direct, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a
director or officer of the Corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding described above, or in
defense of any claim, issue or matter therein, he shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection therewith, without the necessity of authorization in the specific
case.
SECTION 4. GOOD FAITH DEFINED. For purposes of any determination under
Section 3 of this Article VIII, a person shall be deemed to have acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation, or, with
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respect to any criminal action or proceeding, to have had no reasonable cause to
believe his conduct was unlawful, if his action is based on the records or books
of account of the Corporation or another enterprise, or on information supplied
to him by the officers of the Corporation or another enterprise in the course of
their duties, or on the advice of legal counsel for the Corporation or another
enterprise or on information or records given or reports made to the Corporation
or another enterprise by an independent certified public accountant or by an
appraiser or other expert selected with reasonable care by the Corporation or
another enterprise. The term "another enterprise" as used in this Section 4
shall mean any other corporation or any partnership, joint venture, trust,
employee benefit plan or other enterprise of which such person is or was serving
at the request of the Corporation as a director, officer, employee or agent. The
provisions of this Section 4 shall not be deemed to be exclusive or to limit in
any way the circumstances in which a person may be deemed to have met the
applicable standard of conduct set forth in Sections 1 or 2 of this Article
VIII, as the case may be.
SECTION 5. INDEMNIFICATION BY A COURT. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and
notwithstanding the absence of any determination thereunder, any director or
officer may apply to any court of competent jurisdiction in the State of
Delaware for indemnification to the extent otherwise permissible under Sections
1 and 2 of this Article VIII. The basis of such indemnification by a court shall
be a determination by such court that indemnification of the director or officer
is proper in the circumstances because he has met the applicable standards of
conduct set forth in Sections 1 or 2 of this Article VIII, as the case may be.
Neither a contrary determination in the specific case under Section 3 of this
Article VIII nor the absence of any determination thereunder shall be a defense
to such application or create a presumption that the director or officer seeking
indemnification has not met any applicable standard of conduct. Notice of any
application for indemnification pursuant to this Section 5 shall be given to the
Corporation promptly upon the filing of such application. If successful, in
whole or in part, the director or officer seeking indemnification shall also be
entitled to be paid the expense of prosecuting such application.
SECTION 6. EXPENSES PAYABLE IN ADVANCE. Expenses incurred by a director
or officer in defending or investigating a threatened or pending action, suit or
proceeding may be paid by the Corporation, upon the determination by the Board
of Directors, in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the Corporation as authorized in this Article
VIII, provided the Corporation approves in advance counsel selected by the
director or officer (which approval shall not be unreasonably withheld).
SECTION 7. NON-EXCLUSIVITY OF INDEMNIFICATION AND ADVANCEMENT OF
EXPENSES. The indemnification and advancement of expenses provided by or granted
pursuant to this Article VIII shall not be deemed exclusive of any other rights
to which those seeking indemnification or advancement of expenses may be
entitled under the Certificate of Incorporation or any By-Law, agreement,
contract, vote of stockholders or disinterested directors or pursuant to the
direction (howsoever embodied) of any court of competent jurisdiction or
otherwise, both as to
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action in his official capacity and as to action in another capacity while
holding such office, it being the policy of the Corporation that indemnification
of the persons specified in Sections 1 and 2 of this Article VIII shall be made
to the fullest extent permitted by law. The provisions of this Article VIII
shall not be deemed to preclude the indemnification of any person who is not
specified in Sections 1 or 2 of this Article VIII but whom the Corporation has
the power or obligation to indemnify under the provisions of the General
Corporation Law of the State of Delaware, or otherwise.
SECTION 8. INSURANCE. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a director or officer of the
Corporation, or is or was a director or officer of the Corporation serving at
the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise against any liability asserted against him and incurred by him
in any such capacity, or arising out of his status as such, whether or not the
Corporation would have the power or the obligation to indemnify him against such
liability under the provisions of this Article VIII.
SECTION 9. CERTAIN DEFINITIONS. For purposes of this Article VIII,
references to "the Corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors or officers, so that any person who is or was a director or officer of
such constituent corporation, or is or was a director or officer of such
constituent corporation serving at the request of such constituent corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise, shall stand in
the same position under the provisions of this Article VIII with respect to the
resulting or surviving corporation as he would have with respect to such
constituent corporation if its separate existence had continued. For purposes of
this Article VIII, references to "fines" shall include any excise taxes assessed
on a person with respect to an employee benefit plan; and references to "serving
at the request of the Corporation" shall include any service as a director,
officer, employee or agent of the Corporation which imposes duties on, or
involves services by, such director or officer with respect to an employee
benefit plan, its participants or beneficiaries; and a person who acted in good
faith and in a manner he reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be deemed to
have acted in a manner "not opposed to the best interests of the Corporation" as
referred to in this Article VIII.
SECTION 10. SURVIVAL OF INDEMNIFICATION AND ADVANCEMENT OF EXPENSES.
The indemnification and advancement of expenses provided by the Corporation
pursuant to this Article VIII shall, unless otherwise provided when authorized
or ratified, continue as to a person who has ceased to be a director or officer
and shall inure to the benefit of the heirs, executors and administrators of
such a person.
SECTION 11. LIMITATION ON INDEMNIFICATION. Notwithstanding anything
contained in this Article VIII to the contrary, except for proceedings to
enforce rights to indemnification (which
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shall be governed by Section 5 hereof), the Corporation shall not be obligated
to indemnify any director or officer (in connection with a proceeding (or part
thereof) initiated by such person unless such proceeding (or part thereof) was
authorized or consented to by the Board of Directors of the Corporation.
SECTION 12. INDEMNIFICATION OF EMPLOYEES AND AGENTS. The Corporation
may, to the extent authorized from time to time by the Board of Directors,
provide rights to indemnification and to the advancement of expenses to
employees and agents of the Corporation similar to those conferred in this
Article VIII to directors and officers of the Corporation.
ARTICLE IX -- AMENDMENTS
SECTION 1. AMENDMENTS. These By-Laws of the Corporation may be altered,
amended, changed, added to or repealed in whole or in part, or new By-Laws may
be adopted, by the stockholders or the Board of Directors, provided, however,
that notice of such alteration, amendment, repeal or adoption of new By-Laws is
provided before the date on which the meeting of stockholders at which such
shall become effective or be voted on, as the case may be. For purposes of this
Article IX, filing such alteration, amendment, repeal or new By-Laws with the
Securities and Exchange Commission and/or the principal securities exchange on
which the common stock of the Corporation is traded shall be deemed to provide
notice thereof. All such amendments must be approved by either the holders of a
majority of the outstanding capital stock of the Corporation entitled to vote
thereon or by a majority of the entire Board of Directors.
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