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Exhibit 3.2
BYLAWS
OF
KROLL RISK CONSULTING SERVICES, INC.
ARTICLE I
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Stockholders
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SECTION 1. ANNUAL MEETING. The annual meeting of stockholders shall be
held at the hour, date and place within or without the United States which is
fixed by the Board of Directors or an officer designated by the Board of
Directors, which time, date and place may subsequently be changed at any time by
vote of the Board of Directors.
SECTION 2. MATTERS TO BE CONSIDERED AT ANNUAL MEETINGS. At any annual
meeting or special meeting of stockholders in lieu thereof (the "Annual
Meeting"), only such business shall be conducted, and only such proposals shall
be acted upon as shall have been properly brought before such Annual Meeting. To
be considered as properly brought before an Annual Meeting, business must be:
(a) specified in the notice of meeting, (b) otherwise properly brought before
the meeting by, or at the direction of, the Board of Directors, or (c) otherwise
properly brought before the meeting by any holder of record (both as of the time
notice of such proposal is given by the stockholder as set forth below and as of
the record date for the Annual Meeting in question) of any shares of capital
stock of the Corporation entitled to vote at such Annual Meeting on such
business who complies with the requirements set forth in this Section 2.
In addition to any other applicable requirements, for business to be
properly brought before an Annual Meeting by a stockholder of record of any
shares of capital stock entitled to vote at such Annual Meeting, such
stockholder shall: (i) give timely notice as required by this Section 2 to the
Secretary of the Corporation, and (ii) be present at such meeting, either in
person or by a representative. For the first Annual Meeting following the
split-up (the "Split-up") of Kroll Risk Consulting Services, Inc., a Delaware
corporation and a wholly-owned subsidiary of The Kroll-O'Gara Company, from The
Kroll-O'Gara Company, an Ohio corporation, a stockholder's notice shall be
timely if delivered to, or mailed to and received by, the Corporation at its
principal executive office not later than the close of business on the later of
(A) the 75th day prior to the scheduled date of such Annual Meeting or (B) the
15th day following the day on which public announcement of the date of such
Annual Meeting is first made by the Corporation. For all subsequent Annual
Meetings, a stockholder's notice shall be timely if delivered to, or mailed to
and received by, the Corporation at its principal executive office not less than
75 days nor more than 120 days prior to the anniversary date of the immediately
preceding Annual Meeting (the "Anniversary Date"); provided, however, that in
the event the Annual Meeting is scheduled to be held on a date more than 30 days
before the Anniversary Date or more than 60 days after the Anniversary Date, a
stockholder's notice shall be timely if delivered to, or mailed to and received
by, the Corporation at its principal executive office not later than the close
of business on the later of (A) the 75th day prior to the scheduled date of such
Annual Meeting, or (B) the 15th day following the day on which public
announcement of the date of such Annual Meeting is first made by the
Corporation.
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For purposes of these Bylaws, "public announcement" shall mean: (i)
disclosure in a press release reported by the Dow Jones News Service, Associated
Press or comparable national news service, (ii) a report or other document filed
publicly with the Securities and Exchange Commission (including, without
limitation, a Form 8-K), or (iii) a letter or report sent to stockholders of
record of the Corporation at the close of business on the day of the mailing of
such letter or report.
A stockholder's notice to the Secretary shall set forth as to each
matter proposed to be brought before an Annual Meeting: (i) a brief description
of the business the stockholder desires to bring before such Annual Meeting and
the reasons for conducting such business at such Annual Meeting, (ii) the name
and address, as they appear on the Corporation's stock transfer books, of the
stockholder proposing such business, (iii) the class and number of shares of the
Corporation's capital stock beneficially owned by the stockholder proposing such
business, (iv) the names and addresses of the beneficial owners, if any, of any
capital stock of the Corporation registered in such stockholder's name on such
books, and the class and number of shares of the Corporation's capital stock
beneficially owned by such beneficial owners, (v) the names and addresses of
other stockholders known by the stockholder proposing such business to support
such proposal, and the class and number of shares of the Corporation's capital
stock beneficially owned by such other stockholders, and (vi) any material
interest of the stockholder proposing to bring such business before such meeting
(or any other stockholders known to be supporting such proposal) in such
proposal.
If the Board of Directors or a designated committee thereof determines
that any stockholder proposal was not made in a timely fashion in accordance
with the provisions of this Section 2 or that the information provided in a
stockholder's notice does not satisfy the information requirements of this
Section 2 in any material respect, such proposal shall not be presented for
action at the Annual Meeting in question. If neither the Board of Directors nor
such committee makes a determination as to the validity of any stockholder
proposal in the manner set forth above, the presiding officer of the Annual
Meeting shall determine whether the stockholder proposal was made in accordance
with the terms of this Section 2. If the presiding officer determines that any
stockholder proposal was not made in a timely fashion in accordance with the
provisions of this Section 2 or that the information provided in a stockholder's
notice does not satisfy the information requirements of this Section 2 in any
material respect, such proposal shall not be presented for action at the Annual
Meeting in question. If the Board of Directors, a designated committee thereof
or the presiding officer determines that a stockholder proposal was made in
accordance with the requirements of this Section 2, the presiding officer shall
so declare at the Annual Meeting and ballots shall be provided for use at the
meeting with respect to such proposal.
Notwithstanding the foregoing provisions of these Bylaws, a stockholder
shall also comply with all applicable requirements of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and the rules and regulations
thereunder with respect to the matters set forth in this Bylaw, and nothing in
this Bylaw shall be deemed to affect any rights of stockholders to request
inclusion of proposals in the Corporation's proxy statement, or the
Corporation's right to refuse inclusion thereof, pursuant to Rule 14a-8 under
the Exchange Act.
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SECTION 3. SPECIAL MEETINGS. Except as otherwise required by law,
special meetings of the stockholders of the Corporation may be called only by
the Chief Executive Officer of the Corporation or the Board of Directors
pursuant to a resolution approved by the affirmative vote of a majority of the
Directors then in office.
SECTION 4. MATTERS TO BE CONSIDERED AT SPECIAL MEETINGS. Only those
matters set forth in the notice of the special meeting may be considered or
acted upon at a special meeting of stockholders of the Corporation, unless
otherwise provided by law.
SECTION 5. NOTICE OF MEETINGS; ADJOURNMENTS. A written notice of all
Annual Meetings stating the hour, date and place of such Annual Meetings shall
be given by the Secretary (or other person authorized by these Bylaws or by law)
not less than 10 days nor more than 60 days before the Annual Meeting, to each
stockholder entitled to vote thereat and to each stockholder who, by law or
under the Certificate of Incorporation of the Corporation ("Certificate of
Incorporation") or under these Bylaws, is entitled to such notice, by delivering
such notice to him or by mailing it, postage prepaid, addressed to such
stockholder at the address of such stockholder as it appears on the
Corporation's stock transfer books. Such notice shall be deemed to be delivered
when hand delivered to such address or deposited in the mail so addressed, with
postage prepaid.
Notice of all special meetings of stockholders shall be given in the
same manner as provided for Annual Meetings, except that the written notice of
all special meetings shall state the purpose or purposes for which the meeting
has been called.
Notice of an Annual Meeting or special meeting of stockholders need not
be given to a stockholder if a written waiver of notice is signed before or
after such meeting by such stockholder or if such stockholder attends such
meeting, unless such attendance was for the express purpose of objecting at the
beginning of the meeting to the transaction of any business because the meeting
was not lawfully called or convened. Neither the business to be transacted at,
nor the purpose of, any Annual Meeting or special meeting of stockholders need
be specified in any written waiver of notice.
The Board of Directors may adjourn, postpone and reschedule any
previously scheduled Annual Meeting or special meeting of stockholders and any
record date with respect thereto, regardless of whether any notice or public
disclosure with respect to any such meeting has been sent or made pursuant to
Section 2 of this Article I or Section 3 of Article II of these Bylaws or
otherwise. In no event shall the public announcement of an adjournment,
postponement or rescheduling of any previously scheduled meeting of stockholders
commence a new time period for the giving of a stockholder's notice under
Section 2 of this Article I or Section 3 of Article II of these Bylaws.
When any Annual Meeting or special meeting of stockholders is convened,
the presiding officer may adjourn the meeting if (a) no quorum is present for
the transaction of business, (b) the Board of Directors determines that
adjournment is necessary or appropriate to enable the stockholders to consider
fully information which the Board of Directors determines has not been made
sufficiently or timely available to stockholders, or (c) the Board of Directors
determines that adjournment is otherwise in the best interests of the
Corporation. When any
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Annual Meeting or special meeting of stockholders is adjourned to another hour,
date or place, notice need not be given of the adjourned meeting other than an
announcement at the meeting at which the adjournment is taken of the hour, date
and place to which the meeting is adjourned; provided, however, that if the
adjournment is for more than 30 days, or if after the adjournment a new record
date is fixed for the adjourned meeting, notice of the adjourned meeting shall
be given to each stockholder of record entitled to vote thereat and each
stockholder who, by law or under the Certificate of Incorporation or under these
Bylaws, is entitled to such notice.
SECTION 6. QUORUM. The holders of shares of voting stock representing a
majority of the voting power of the outstanding shares of voting stock issued,
outstanding and entitled to vote at a meeting of stockholders, represented in
person or by proxy at such meeting, shall constitute a quorum; but if less than
a quorum is present at a meeting, the holders of voting stock representing a
majority of the voting power present at the meeting or the presiding officer may
adjourn the meeting from time to time, and the meeting may be held as adjourned
without further notice, except as provided in Section 5 of this Article I. At
such adjourned meeting at which a quorum is present, any business may be
transacted which might have been transacted at the meeting as originally
noticed. The stockholders present at a duly constituted meeting may continue to
transact business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum.
SECTION 7. VOTING AND PROXIES. Stockholders shall have one vote for
each share of stock entitled to vote owned by them of record according to the
books of the Corporation, unless otherwise provided by law or by the Certificate
of Incorporation. Stockholders may vote either in person or by written proxy,
but no proxy shall be voted or acted upon after three years from its date,
unless the proxy provides for a longer period. Proxies shall be filed with the
Secretary of the meeting before being voted. Except as otherwise limited therein
or as otherwise provided by law, proxies shall entitle the persons authorized
thereby to vote at any adjournment of such meeting. A proxy with respect to
stock held in the name of two or more persons shall be valid if executed by or
on behalf of any one of them unless at or prior to the exercise of the proxy the
Corporation receives a specific written notice to the contrary from any one of
them. A proxy purporting to be executed by or on behalf of a stockholder shall
be deemed valid, and the burden of proving invalidity shall rest on the
challenger.
SECTION 8. ACTION AT MEETING. When a quorum is present, any matter
properly brought before any meeting of stockholders shall be decided by the vote
of a majority of the voting power of shares of voting stock present in person or
represented by proxy at such meeting and entitled to vote on such matter, except
where a larger vote is required by law, by the Certificate of Incorporation or
by these Bylaws. Any election of Directors by stockholders shall be determined
by a plurality of the votes cast, except where a larger vote is required by law,
by the Certificate of Incorporation or by these Bylaws. The Corporation shall
not directly or indirectly vote any shares of its own stock; provided, however,
that the Corporation may vote shares which it holds in a fiduciary capacity to
the extent permitted by law.
SECTION 9. STOCKHOLDER LISTS. The Secretary (or the Corporation's
transfer agent or other person authorized by these Bylaws or by law) shall
prepare and make, at least 10 days before every Annual Meeting or special
meeting of stockholders, a complete list of the stockholders entitled to vote at
the meeting, arranged in alphabetical order, and showing the
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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 business hours, for a
period of at least 10 days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place where the meeting
is to be held. The list shall also be produced and kept at the hour, date and
place of the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
SECTION 10. PRESIDING OFFICER. The Chairman of the Board or if there is
no Chairman of the Board, or in his absence, the Chief Executive Officer of the
Corporation or, in their absence, such other officer as shall be designated by
the Board of Directors shall preside at all Annual Meetings or special meetings
of stockholders and shall have the power, among other things, to adjourn such
meeting at any time and from time to time, subject to Sections 5 and 6 of this
Article I. The order of business and all other matters of procedure at any
meeting of the stockholders shall be determined by the presiding officer.
SECTION 11. VOTING PROCEDURES AND INSPECTORS OF ELECTIONS. The
Corporation shall, in advance of, or at, any meeting of stockholders, appoint
one or more inspectors to act at the meeting and make a written report thereof.
The Corporation may designate one or more persons as alternate inspectors to
replace any inspector who fails to act. If no inspector or alternate is able to
act at a meeting of stockholders, the presiding officer shall appoint one or
more inspectors to act at the meeting. Any inspector may, but need not, be an
officer, employee or agent of the Corporation. Each inspector, before entering
upon the discharge of his duties, shall take and sign an oath faithfully to
execute the duties of inspector with strict impartiality and according to the
best of his or her ability. The inspectors shall perform such duties as are
required by the General Corporation Law of the State of Delaware, as amended
from time to time, including the counting of all votes and ballots. The
inspectors may appoint or retain other persons or entities to assist the
inspectors in the performance of the duties of the inspectors. The presiding
officer may review all determinations made by the inspector(s), and in so doing
the presiding officer shall be entitled to exercise his or her sole judgment and
discretion and he or she shall not be bound by any determinations made by the
inspector(s). All determinations by the inspector(s) and, if applicable, the
presiding officer shall be subject to further review by any court of competent
jurisdiction.
SECTION 11. NO ACTION BY WRITTEN CONSENT. Any action required or
permitted to be taken by the stockholders of the Corporation must be effected at
a duly called annual or special meeting of the stockholders and may not be
effected by a consent in writing by any such stockholders.
ARTICLE II
Directors
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SECTION 1. POWERS. The business and affairs of the Corporation shall be
managed by or under the direction of the Board of Directors except as otherwise
provided by the Certificate of Incorporation or required by law.
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SECTION 2. NUMBER AND TERMS. The number of Directors constituting the
entire Board of Directors of the Corporation shall not be less than two nor more
than ten as fixed by resolution duly adopted from time to time by the Board of
Directors.
Commencing on the effective time of the Split-up, the Directors shall
be classified, with respect to the term for which they severally hold office,
into three classes, as nearly equal in number as possible. The initial Class I,
II and III Directors shall be appointed by the Board of Directors upon the
effective time of the Split-up. The initial Class I Directors shall serve until
the first Annual Meeting after the Split-up. The initial Class II Directors
shall serve until the second Annual Meeting after the Split-up. The initial
Class III Directors shall serve until the third Annual Meeting after the
Split-up. Members of each class shall hold office until their successors are
duly elected and qualified or until their earlier death, disqualification,
resignation or removal. At each succeeding Annual Meeting, the successors of the
class of Directors whose term expires at that meeting shall be elected by a
plurality vote of all votes cast at such meeting to hold office for a term
expiring at the Annual Meeting held in the third year following the year of
their election.
SECTION 3. DIRECTOR NOMINATIONS. Nominations of candidates for election
as Directors of the Corporation at any Annual Meeting may be made only (a) by,
or at the direction of, the Board of Directors or (b) by any holder of record
(both as of the time notice of such nomination is given by the stockholder as
set forth below and as of the record date for the Annual Meeting in question) of
any shares of the capital stock of the Corporation entitled to vote for the
election of Directors at such Annual Meeting who complies with the timing,
informational and other requirements set forth in this Section 3. Any
stockholder who seeks to make such a nomination or his representative must be
present in person at the Annual Meeting. Only persons nominated in accordance
with the procedures set forth in this Section 3 shall be eligible for election
as Directors at an Annual Meeting.
Nominations, other than those made by, or at the direction of, the
Board of Directors, shall be made pursuant to timely notice in writing to the
Secretary of the Corporation as set forth in this Section 3. For the first
Annual Meeting following the Split-up, a stockholder's notice shall be timely if
delivered to, or mailed to and received by, the Corporation at its principal
executive office not later than the close of business on the later of (A) the
75th day prior to the scheduled date of such Annual Meeting or (B) the 15th day
following the day on which public announcement of the date of such Annual
Meeting is first made by the Corporation. For all subsequent Annual Meetings, a
stockholder's notice shall be timely if delivered to, or mailed to and received
by, the Corporation at its principal executive office not less than 75 days nor
more than 120 days prior to the Anniversary Date; provided, however, that in the
event the Annual Meeting is scheduled to be held on a date more than 30 days
before the Anniversary Date or more than 60 days after the Anniversary Date, a
stockholder's notice shall be timely if delivered to, or mailed and received by,
the Corporation at its principal executive office not later than the close of
business on the later of (i) the 75th day prior to the scheduled date of such
Annual Meeting or (ii) the 15th day following the day on which public
announcement of the date of such Annual Meeting is first made by the
Corporation.
A stockholder's notice to the Secretary shall set forth as to each
person whom the stockholder proposes to nominate for election or re-election as
a Director: (i) the name, age,
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business address and residence address of such person, (ii) the principal
occupation or employment of such person, (iii) the class and number of shares of
the Corporation's capital stock which are beneficially owned by such person on
the date of such stockholder notice, (iv) the consent of each nominee to serve
as a Director if elected, and (v) such information concerning such person as is
required to be disclosed concerning a nominee for election as Director of the
Corporation pursuant to the rules and regulations under the Exchange Act. A
stockholder's notice to the Secretary shall further set forth as to the
stockholder giving such notice: (i) the name and address, as they appear on the
Corporation's stock transfer books, of such stockholder and of the beneficial
owners (if any) of the Corporation's capital stock registered in such
stockholder's name and the name and address of other stockholders known by such
stockholder to be supporting such nominee(s), (ii) the class and number of
shares of the Corporation's capital stock which are held of record, beneficially
owned or represented by proxy by such stockholder and by any other stockholders
known by such stockholder to be supporting such nominee(s) on the record date
for the Annual Meeting in question (if such date shall then have been made
publicly available) and on the date of such stockholder's notice, and (iii) 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 or in connection therewith.
If the Board of Directors or a designated committee thereof determines
that any stockholder nomination was not timely made in accordance with the terms
of this Section 3 or that the information provided in a stockholder's notice
does not satisfy the informational requirements of this Section 3 in any
material respect, then such nomination shall not be considered at the Annual
Meeting in question. If neither the Board of Directors nor such committee makes
a determination as to whether a nomination was made in accordance with the
provisions of this Section 3, the presiding officer of the Annual Meeting shall
determine whether a nomination was made in accordance with such provisions. If
the presiding officer determines that any stockholder nomination was not timely
made in accordance with the terms of this Section 3 or that the information
provided in a stockholder's notice does not satisfy the information requirements
of this Section 3 in any material respect, then such nomination shall not be
considered at the Annual Meeting in question. If the Board of Directors, a
designated committee thereof or the presiding officer determines that a
nomination was made in accordance with the terms of this Section 3, the
presiding officer shall so declare at the Annual Meeting and such nominee shall
be eligible for election at the meeting.
No person shall be elected by the stockholders as a Director of the
Corporation unless nominated in accordance with the procedures set forth in this
Section. Election of Directors at the Annual Meeting need not be by written
ballot, unless otherwise provided by the Board of Directors or the presiding
officer at such Annual Meeting. If written ballots are to be used, ballots
bearing the names of all the persons who have been nominated for election as
Directors at the Annual Meeting in accordance with the procedures set forth in
this Section shall be provided for use at the Annual Meeting.
SECTION 4. QUALIFICATION. No Director need be a stockholder of the
Corporation.
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SECTION 5. VACANCIES. Any and all vacancies occurring on the Board of
Directors, including, without limitation, any vacancy created by reason of an
increase in the number of Directors, or resulting from death, resignation,
disqualification, removal or any other cause, may be filled by the affirmative
vote of a majority of the remaining Directors then in office, even if such
remaining Directors constitute less than a quorum of the Board of Directors, or
if such vacancy is not so filled by the remaining Directors, by the stockholders
of the Corporation. Any Director appointed or elected in accordance with the
preceding sentence shall hold office for the remainder of the full term of the
class of Directors in which the new directorship was created or the vacancy
occurred and until such Director's successor shall have been duly elected and
qualified or until his or her earlier death, disqualification, resignation or
removal. When the number of Directors is increased or decreased, the Board of
Directors shall determine the class or classes to which the increased or
decreased number of Directors shall be apportioned; provided, however, that no
decrease in the number of Directors shall shorten the term of any incumbent
Director unless such Director is removed as permitted in the Certificate of
Incorporation. In the event of a vacancy in the Board of Directors, the
remaining Directors, except as otherwise provided by law, may exercise the
powers of the full Board of Directors until the vacancy is filled.
SECTION 6. REMOVAL. Directors may be removed from office in the manner
provided in the Certificate of Incorporation.
SECTION 7. RESIGNATION. A Director may resign at any time by giving
written notice to the Corporation addressed to the Chief Executive Officer or
the Secretary. A resignation shall be effective upon receipt, unless the
resignation otherwise provides, and need not be accepted by the Corporation.
SECTION 8. REGULAR MEETINGS. The regular annual meeting of the Board of
Directors shall be held, without notice other than this Bylaw, on the same date
and at the same place as the Annual Meeting following the close of such meeting
of stockholders. Other regular meetings of the Board of Directors may be held at
such hour, date and place as the Board of Directors may by resolution from time
to time determine without notice other than such resolution.
SECTION 9. SPECIAL MEETINGS. Special meetings of the Board of Directors
may be called, orally or in writing, by or at the request of a majority of the
Directors then in office or the Chief Executive Officer of the Corporation. The
person calling any such special meeting of the Board of Directors may fix the
hour, date and place thereof.
SECTION 10. NOTICE OF MEETINGS. Notice of the hour, date and place of
all special meetings of the Board of Directors shall be given to each Director
by the Secretary or the person calling such meeting, or in case of the death,
absence, incapacity or refusal of such person, by the Chief Executive Officer of
the Corporation or such other officer as shall be designated by the Board of
Directors. Notice of any special meeting of the Board of Directors shall be
given to each Director in person, by telephone, or by telex, telecopy, telegram,
e-mail or other written form of electronic communication, sent to his business
or home address, at least 24 hours in advance of the meeting, or by written
notice sent by next-day delivery courier service to his business or home
address, at least 48 hours in advance of the meeting. Such notice shall be
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deemed to be delivered when hand delivered to such address, read to such
Director by telephone, deposited in the mail so addressed, with postage thereon
prepaid if mailed, dispatched or transmitted if telexed, telecopied, e-mailed or
effected by another written form of electronic communication, or when delivered
to the telegraph company if sent by telegram.
When any Board of Directors meeting, either regular or special, is
adjourned for 30 days or more, notice of the adjourned meeting shall be given as
in the case of an original meeting. It shall not be necessary to give any notice
of the hour, date or place of any meeting adjourned for less than 30 days or of
the business to be transacted thereat, other than an announcement at the meeting
at which such adjournment is taken of the hour, date and place to which the
meeting is adjourned.
A written waiver of notice signed before or after a meeting by a
Director and filed with the records of the meeting shall be deemed to be
equivalent to notice of the meeting. The attendance of a Director at a meeting
shall constitute a waiver of notice of such meeting, except where a Director
attends a meeting for the express purpose of objecting at the beginning of the
meeting to the transaction of any business because such meeting is not lawfully
called or convened. Except as otherwise required by law, by the Certificate of
Incorporation or by these Bylaws, neither the business to be transacted at, nor
the purpose of, any meeting of the Board of Directors need be specified in the
notice or waiver of notice of such meeting.
SECTION 11. QUORUM. At any meeting of the Board of Directors, a
majority of the Directors then in office (but in no event less than one-third of
the entire Board of Directors) shall constitute a quorum for the transaction of
business, but if less than a quorum is present at a meeting, a majority of the
Directors present may adjourn the meeting from time to time, and the meeting may
be held as adjourned without further notice, except as provided in Section 10 of
this Article II. Any business which might have been transacted at the meeting as
originally noticed may be transacted at such adjourned meeting at which a quorum
is present.
SECTION 12. ACTION AT MEETING. At any meeting of the Board of Directors
at which a quorum is present, a majority of the Directors present may take any
action on behalf of the Board of Directors, unless otherwise required by law, by
the Certificate of Incorporation or by these Bylaws.
SECTION 13. ACTION BY CONSENT. Any action required or permitted to be
taken at any meeting of the Board of Directors may be taken without a meeting if
all members of the Board of Directors consent thereto in writing. Such written
consent shall be filed with the records of the meetings of the Board of
Directors and shall be treated for all purposes as a vote at a meeting of the
Board of Directors.
SECTION 14. MANNER OF PARTICIPATION. Directors may participate in
meetings of the Board of Directors by means of conference telephone or similar
communications equipment by means of which all Directors participating in the
meeting can hear each other, and participation in a meeting in accordance
herewith shall constitute presence in person at such meeting for purposes of
these Bylaws.
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SECTION 15. COMMITTEES. The Board of Directors, by vote of a majority
of the Directors then in office, may elect from its number, one or more
committees, including but not limited to, an Executive Committee, a Compensation
Committee and an Audit Committee, and may delegate thereto some or all of its
powers except those which by law, by the Certificate of Incorporation or by
these Bylaws may not be delegated. Except as the Board of Directors may
otherwise determine, any such committee may make rules for the conduct of its
business, but unless otherwise provided by the Board of Directors or in such
rules, its business shall be conducted so far as possible in the same manner as
is provided by these Bylaws for the Board of Directors. All members of such
committees shall hold such offices at the pleasure of the Board of Directors.
The Board of Directors may abolish any such committee at any time. Any committee
to which the Board of Directors delegates any of its powers or duties shall keep
records of its meetings and shall report its action to the Board of Directors.
The Board of Directors shall have power to rescind any action of any committee,
to the extent permitted by law, but no such rescission shall have retroactive
effect.
SECTION 16. COMPENSATION OF DIRECTORS. Directors shall receive such
compensation for their services as shall be determined by a majority of the
Directors then in office provided that Directors who are serving the Corporation
as employees and who receive compensation for their services as such, shall not
receive any salary or other compensation for their services as Directors of the
Corporation.
ARTICLE III
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Officers
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SECTION 1. ENUMERATION. The officers of the Corporation shall consist
of a Chief Executive Officer, a President, a Chief Operating Officer, a Chief
Financial Officer, a Secretary and such other officers, including, without
limitation, a Treasurer, a Chairman of the Board and one or more Vice-Chairmen
of the Board, Vice-Presidents (including Executive Vice Presidents or Senior
Vice Presidents), Assistant Vice Presidents, Assistant Treasurers and Assistant
Secretaries, as the Board of Directors may determine.
SECTION 2. ELECTION. At the regular annual meeting of the Board
following the annual meeting of stockholders, the Board of Directors shall elect
the Chief Executive Officer, the President, the Chief Operating Officer, the
Chief Financial Officer, and the Secretary. Other officers may be elected or
appointed by the Board of Directors at such regular annual meeting of the Board
of Directors or at any other regular or special meeting.
SECTION 3. QUALIFICATION. No officer need be a stockholder or a
Director. Any person may occupy more than one office of the Corporation at any
time. Any officer may be required by the Board of Directors to give bond for the
faithful performance of his duties in such amount and with such sureties as the
Board of Directors may determine.
SECTION 4. TENURE. Except as otherwise provided by the Certificate of
Incorporation or by these Bylaws, each of the officers of the Corporation shall
hold office until the regular annual meeting of the Board of Directors following
the next Annual Meeting and until his successor is elected and qualified or
until his earlier death, disqualification, resignation or removal.
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SECTION 5. RESIGNATION. Any officer may resign by giving written notice
to the Corporation addressed to the Chief Executive Officer or the Secretary. A
resignation shall be effective, upon receipt unless the resignation otherwise
provides, and need not be accepted by the Corporation.
SECTION 6. REMOVAL. Except as otherwise provided by law, the Board of
Directors may remove any officer with or without cause at any time.
SECTION 7. ABSENCE OR DISABILITY. In the event of the absence or
disability of any officer, the Board of Directors may designate another officer
to act temporarily in place of such absent or disabled officer.
SECTION 8. VACANCIES. Any vacancy in any office may be filled for the
unexpired portion of the term by the Board of Directors.
SECTION 9. POWERS AND DUTIES. Each of the officers of the Corporation
shall, unless otherwise ordered by the Board of Directors, have such powers and
duties as generally pertain to the officer's respective office as well as such
powers and duties as from time to time may be conferred upon the officer by the
Board of Directors.
ARTICLE IV
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Capital Stock
-------------
SECTION 1. CERTIFICATES OF STOCK. Each stockholder shall be entitled to
a certificate of the capital stock of the Corporation in such form as may from
time to time be prescribed by the Board of Directors. Such certificate shall be
signed by the Chairman or Vice-Chairman of the Board or the Chief Executive
Officer, the President, the Chief Operating Officer or a Vice President and by
the Treasurer or an Assistant Treasurer or the Secretary or an Assistant
Secretary. The corporate seal and the signatures by Corporation officers, the
transfer agent or the registrar may be facsimiles. In case any officer, transfer
agent or registrar who has signed or whose facsimile signature has been placed
on such certificate shall have ceased to be such officer, transfer agent or
registrar before such certificate is issued, it may be issued by the Corporation
with the same effect as if he were such officer, transfer agent or registrar at
the time of its issue. Every certificate for shares of stock which are subject
to any restriction on transfer and every certificate issued when the Corporation
is authorized to issue more than one class or series of stock shall contain such
legend with respect thereto as is required by law.
SECTION 2. TRANSFERS. Subject to any restrictions on transfer and
unless otherwise provided by the Board of Directors, shares of stock may be
transferred only on the books of the Corporation by the surrender to the
Corporation or its transfer agent of the certificate theretofore properly
endorsed or accompanied by a written assignment or power of attorney properly
executed, with transfer stamps (if necessary) affixed, and with such proof of
the authenticity of signature as the Corporation or its transfer agent may
reasonably require.
SECTION 3. RECORD HOLDERS. Except as may otherwise be required by law,
by the Certificate of Incorporation or by these Bylaws, the Corporation shall be
entitled to treat the record holder of stock as shown on its books as the owner
of such stock for all purposes, including the payment of dividends and the right
to vote with respect thereto, regardless of any
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transfer, pledge or other disposition of such stock, until the shares have been
transferred on the books of the Corporation in accordance with the requirements
of these Bylaws.
It shall be the duty of each stockholder to notify the Corporation of
his or her post office address and any changes thereto.
SECTION 4. 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 receive payments 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 a record date, which record
date shall not precede the date upon which the resolution fixing the record date
is adopted by the Board of Directors, and which record date: (1) in the case of
determination of stockholders entitled to vote at any meeting of stockholders,
shall, unless otherwise required by law, not be more than sixty nor less than
ten days before the date of such meeting, and (2) in the case of any other
action, shall not be more than sixty days prior to such other action. If no
record date is fixed: (1) the record date for determining stockholders entitled
to notice of or to vote at a meeting of stockholders shall be at the close of
business on the day next preceding the day on which the meeting is held, and (2)
the record date for determining stockholders for any other purpose shall be at
the close of business on the day on which the Board of Directors adopts the
resolution relating thereto.
ARTICLE V
---------
Indemnification
---------------
The Corporation shall to the fullest extent permitted by Delaware law,
as in effect from time to time (but, in the case of any amendment of the
Delaware General Corporation Law, only to the extent that such amendment permits
the Corporation to provide broader indemnification rights than said law
permitted the Corporation to provide prior to such amendment), indemnify each
person who is or was a Director or officer of the Corporation (or any
predecessor) or of any of its wholly-owned subsidiaries who was or is a party or
is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, or was or is involved in any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), by reason of the fact that such
Director or officer is or was a Director, officer, employee or agent of the
Corporation or of any of its subsidiaries, or is or was at any time serving, at
the request of the Corporation, any other corporation, partnership, limited
liability company, joint venture, trust, employee benefit plan or other
enterprise in any capacity, against all expense, liability and loss (including,
but not limited to, attorneys' fees, judgments, fines, excise taxes or penalties
with respect to any employee benefit plan or otherwise, and amounts paid or to
be paid in settlement) incurred or suffered by such Director or officer in
connection with such proceeding; provided, however, that the Corporation shall
not be obligated to indemnify any person under this Article in connection with a
proceeding (or part thereof) if such proceeding (or part thereof) was initiated
by such person, but was not authorized by the Board of Directors of the
Corporation against (i) the Corporation or any of its subsidiaries, (ii) any
person who is or was a Director, officer, employee or agent of the Corporation
or any of its subsidiaries and/or (iii) any person or entity which is or
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was controlled, controlled by or under common control with the Corporation or
has or had business relations with the Corporation or any of its subsidiaries.
Expenses incurred by a person who is or was a Director or officer of
the Corporation (or any predecessor) or any of its wholly-owned subsidiaries in
defending a proceeding shall be paid by the Corporation as they are incurred in
advance of the final disposition of such 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 or she is not entitled to be
indemnified by the Corporation. Such expenses incurred by former Directors or
officers of the Corporation may be so paid upon such terms and conditions, if
any, as the Board of Directors deems appropriate.
For purposes of this Article, the term "Corporation" shall include, in
addition to the resulting corporation, any constituent corporation (including
any constituent of a constituent) absorbed by the Corporation in a consolidation
or merger; the term "other enterprise" shall include, without limitation, any
corporation, partnership, joint venture, limited liability company, trust or
employee benefit plan; service "at the request of the Corporation" shall
include, without limitation, service as a Director, officer or employee of the
Corporation which imposes duties on, or involves service by, such Director,
officer or employee with respect to an employee benefit plan, its participants
or beneficiaries; any excise taxes assessed on a person with respect to an
employee benefit plan shall be deemed to be indemnifiable expenses; and action
by a person with respect to any employee benefit plan which such person
reasonably believes to be in the interest of the participants and beneficiaries
of such plan shall be deemed to be action in or not opposed to the best
interests of the Corporation.
Notwithstanding any other provision of these Bylaws, no action by the
Corporation, either by amendment to or repeal of this Article or otherwise,
shall diminish or adversely affect any right or protection granted under this
Article to any Director or officer or former Director or officer of the
Corporation (or any predecessor) or of any of its wholly-owned subsidiaries
which shall have become vested as aforesaid prior to the date that any such
amendment, repeal or other corporate action is taken.
ARTICLE VI
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Miscellaneous Provisions
------------------------
SECTION 1. FISCAL YEAR. Except as otherwise determined by the Board of
Directors, the fiscal year of the Corporation shall end on the last day of
December of each year.
SECTION 2. SEAL. The Board of Directors shall have power to adopt and
alter the seal of the Corporation.
SECTION 3. EXECUTION OF INSTRUMENTS. All deeds, leases, transfers,
contracts, bonds, notes and other obligations to be entered into by the
Corporation in the ordinary course of its business without Board of Directors
action may be executed on behalf of the Corporation by the Chairman of the
Board, the Chief Executive Officer, the President, the Chief Operating Officer,
the Chief Financial Officer, any Vice President, or any other officer, employee
or agent of the Corporation as the Board of Directors may authorize.
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SECTION 4. VOTING OF SECURITIES. Unless otherwise ordered by the Board
of Directors, the Chairman of the Board, the Chief Executive Officer, the
President, the Chief Operating Officer, the Chief Financial Officer, and any
Vice President each shall have full power and authority on behalf of the
Corporation to attend and to vote at any meeting of stockholders of any
corporation or other entity in which this Corporation may hold stock or an
ownership interest, and may exercise on behalf of this Corporation any and all
of the rights and powers incident to the ownership of such stock or ownership
interest at any such meeting and shall have power and authority to execute and
deliver proxies, waivers and consents on behalf of the Corporation in connection
with the exercise by the Corporation of the rights and powers incident to the
ownership of such stock or ownership interest. The Board of Directors, from time
to time, may confer like powers upon any other person or persons.
SECTION 5. RESIDENT AGENT. The Board of Directors may appoint a
resident agent upon whom legal process may be served in any action or proceeding
against the Corporation.
SECTION 6. CORPORATE RECORDS. The original or attested copies of the
Certificate of Incorporation, Bylaws and records of all meetings of the
incorporators, stockholders and the Board of Directors (and committees thereof)
and the stock transfer books, which shall contain the names of all stockholders,
their record addresses and the number of shares of stock held by each, may be
kept outside the State of Delaware and shall be kept at the principal office of
the Corporation, at the office of its counsel or at an office of its transfer
agent or at such other place or places as may be designated from time to time by
the Board of Directors.
SECTION 7. CERTIFICATE OF INCORPORATION. All references in these Bylaws
to the Certificate of Incorporation shall be deemed to refer to the Certificate
of Incorporation of the Corporation as in effect from time to time (including
all certificates and other instruments which are filed with the Secretary of
State of the State of Delaware pursuant to the provisions of the Delaware
General Corporation Law and which have the effect of amending or supplementing
in some respect the Certificate of Incorporation of the Corporation).
SECTION 8. AMENDMENT OF BYLAWS.
(a) AMENDMENT BY DIRECTORS. Except as provided otherwise by law, these
Bylaws may be amended or repealed or new Bylaws (not inconsistent with any
provision of law or the Certificate of Incorporation) may be adopted, by the
Board of Directors.
(b) AMENDMENT BY STOCKHOLDERS. These Bylaws may be amended or repealed
at any annual meeting of stockholders, or special meeting of stockholders called
for such purpose, by the affirmative vote of a majority of the total votes
eligible to be cast on such amendment or repeal by holders of voting stock,
voting together as a single class.
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