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EXHIBIT 3.2
BY-LAWS
OF
PROASSURANCE CORPORATION
ARTICLE I
OFFICES
SECTION 1. The registered office of ProAssurance Corporation (herein
called the "Corporation"), in the State of Delaware shall be in the City of
Wilmington, County of New Castle, State of Delaware.
SECTION 2. 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 or the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1. Meetings of stockholders may be held at such time and place,
within or without the State of Delaware, as shall be determined from time to
time by the Board of Directors and stated in the notice of the meeting or in a
duly executed Waiver of Notice thereof. In the event that no place is
designated, or if a special meeting is otherwise called, the place of the
meeting shall be the principal office of the Corporation.
SECTION 2. Annual meetings of stockholders, commencing with the year
2002, shall be held on the second Tuesday in the month of May, if not a legal
holiday, and if a legal holiday, then on the next succeeding business day, at
10:00 A.M., or at such other date and time as shall be designated from time to
time by the Board of Directors and stated in the notice of the meeting, for the
purpose of electing directors and for the transaction of such other business as
may properly come before the meeting. If the annual meeting is not held on the
date designated therefor, the Board of Directors shall cause the meeting to be
held as soon thereafter as convenient.
SECTION 3. 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 4. The officer or agent 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.
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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
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 place where the meeting is to be held.
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 who is
present.
SECTION 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the Certificate of
Incorporation, may be called by the Chairman of the Board, the Vice Chairman of
the Board, or the President, and shall be called by the President or Secretary
at the request in writing of eighty percent (80%) of the Board of Directors.
Such request shall state the purpose or purposes of the proposed meeting.
SECTION 6. Written notice of a special meeting stating the place, date
and hour of the meeting and the purpose or purposes for which the meeting is
called, shall be given not less than ten nor more than sixty days before the
date of the meeting, to each stockholder entitled to vote at such meeting.
SECTION 7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice therefor.
SECTION 8. Except as otherwise provided by law, the Certificate of
Incorporation or these By-Laws, at each meeting of stockholders the presence in
person or by proxy of the holders of shares of stock having one-third of the
votes which could be cast by the holders of all outstanding shares of stock
entitled to vote at the meeting shall be necessary and sufficient to constitute
a quorum. Shares of its own stock belonging to the Corporation or to another
corporation, if a majority of the shares entitled to vote in the election of
directors of such other corporation is held, directly or indirectly, by the
Corporation, shall neither be entitled to vote nor be counted for quorum
purposes; provided, however, that the foregoing shall not limit the right of the
Corporation to vote stock, including but not limited to its own stock, held by
it in a fiduciary capacity.
SECTION 9. Meetings of stockholders shall be presided over by the
Chairman of the Board, if any, or in his or her absence by the Vice Chairman of
the Board, if any, or in his or her absence by the President, or in his or her
absence by a Vice President, or in the absence of the foregoing persons by a
chairman designated by the Board of Directors, or in the absence of such
designation by a chairman chosen at the meeting. The Secretary shall act as
secretary of the meeting, but in his or her absence the chairman of the meeting
may appoint any person to act as secretary of the meeting. The chairman of the
meeting shall announce at the meeting of stockholders the date and time of the
opening and the closing of the polls for each matter upon which the stockholders
will vote.
SECTION 10. Each stockholder entitled to vote at a meeting of
stockholders may authorize another person or persons to act for such stockholder
by proxy, but no such proxy shall be voted
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or acted upon after three years from its date, unless the proxy provides for a
longer period. A stockholder may grant authority to another person or persons to
act for him or her by proxy by any valid means permitted by law, or the
Certificate of Incorporation or the By-Laws of the Corporation. A proxy shall be
irrevocable if it states that it is irrevocable and if, and only as long as, it
is coupled with an interest sufficient in law to support an irrevocable power. A
stockholder may revoke any proxy which is not irrevocable by attending the
meeting and voting in person or by filing an instrument in writing revoking the
proxy or by delivering a proxy in accordance with applicable law bearing a later
date to the Secretary of the Corporation. Voting at meetings of stockholders
need not be by written ballot and, unless otherwise required by law, need not be
conducted by inspectors of election unless so determined by the holders of
shares of stock having a majority of the votes which could be cast by the
holders of all outstanding shares of stock entitled to vote thereon which are
present in person or by proxy at such meeting. At all meetings of stockholders
for the election of directors a plurality of the votes cast shall be sufficient
to elect. All other elections and questions shall, unless otherwise provided by
law, the Certificate of Incorporation or these By-Laws, be decided by the vote
of the holders of shares of stock having a majority of the votes which could be
cast by the holders of all shares of stock outstanding and entitled to vote
thereon.
SECTION 11. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any 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 or
adjournment thereof, 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 notice is
given, or, if notice is waived, 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. 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 12. The Board of Directors of the Corporation may adopt by
resolution such rules and regulations for the conduct of the meeting of
stockholders as it shall deem appropriate. Except to the extent inconsistent
with such rules and regulations as adopted by the Board of Directors, the
chairman of any meeting of stockholders shall have the right and authority to
prescribe such rules, regulations and procedures and to do all such acts as, in
the judgment of such chairman, are appropriate for the proper conduct of the
meeting. Such rules, regulations or
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procedures, whether adopted by the Board of Directors or prescribed by the
chairman of the meeting, may include, without limitation, the following: (i) the
establishment of an agenda or order of business for the meeting; (ii) rules and
procedures for maintaining order at the meeting and the safety of those present;
(iii) limitations on attendance at or participation in the meeting to
stockholders of record of the corporation, their duly authorized and constituted
proxies or such other persons as the chairman of the meeting shall determine;
(iv) restrictions on entry to the meeting after the time fixed for the
commencement thereof; and (v) limitations on the time allotted to questions or
comments by participants. Unless and to the extent determined by the Board of
Directors or the chairman of the meeting, meetings of stockholders shall not be
required to be held in accordance with the rules of parliamentary procedure.
SECTION 13. The chairman of the meeting may adjourn any meeting of the
stockholders from time to time, whether or not a quorum is present, without
notice other than an announcement at the meeting. 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 notified. If the
adjournment is for more than thirty (30) days, or if after the adjournment a new
record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the
meeting.
SECTION 14. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or of
the Certificate of Incorporation, a different vote is required in which case
such express provision shall govern and control the decision of such question.
SECTION 15. A stockholder may propose a matter that is a proper subject
for action by the stockholders for consideration at the annual meeting of the
stockholders of the Corporation in accordance with the following procedure.
Nominations for election to the Board of Directors shall be made only as
provided in Article III, Section 9 of these By-Laws. A stockholder may submit
not more than one proposal (excluding any for which a meeting has been called
and is specified in the notice of the meeting) by delivery of written notice of
such stockholder's intent to make such proposal, either by personal delivery or
by United States mail, postage prepaid, to the secretary of the Corporation not
later than December 1 in the year preceding the annual meeting at which the
proposal is to be considered or such other date as may be established by the
Board of Directors for a particular annual meeting by written notice to the
stockholder. Each such notice shall set forth: (a) a brief description of the
matter or matters desired to be brought before the meeting (including the
complete text of the resolutions to be presented at the meeting) and the reasons
for considering such matter or matters at the meeting; (b) the name and address,
as they appear on the Corporation's books, of the stockholder who intends to
propose such matter or matters; (c) a representation that the stockholder has
been a holder of shares of the Corporation entitled to vote as such meeting for
a period of one year and intends to hold such shares through the date of the
annual meeting and to appear in person or by proxy at the meeting to bring
before the meeting the matter specified in the notice; (iv) a description of all
arrangements, understandings or relationships between the stockholder and any
other person or
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persons (naming such person or persons) with respect to shares of capital stock
of the Corporation or the matter specified in the notice; and (v) any material
interest of the stockholder in the matter specified in the notice. A stockholder
proposal, including any accompanying statement, may not exceed five hundred
(500) words. Stockholders may not submit proposals for consideration at a
special meeting of the stockholders of the Corporation. The presiding officer at
a meeting of the stockholders may refuse to acknowledge the proposal of any
stockholder not made in compliance with the foregoing.
A shareholder may not participate at an annual meeting or special
meeting of shareholders by a conference telephone or other similar
communications equipment.
ARTICLE III
DIRECTORS
SECTION 1. The business and affairs of the Corporation shall be managed
by its 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 directed or required to be exercised or done by the
stockholders or officers of the Corporation.
SECTION 2. The Board of Directors of the Corporation may hold meetings,
both regular and special, either within or without the State of Delaware.
SECTION 3. A regular meeting of the Board of Directors shall be held
without other notice than this By-Law immediately after, and at the same place
as, the annual meeting of stockholders. The Board of Directors may provide, by
resolution, the time and place, either within or without the State of Delaware,
for the holding of additional regular meetings without other notice than such
resolution.
SECTION 4. Special meetings of the Board of Directors may be called by
or at the request of the Chairman of the Board of Directors, or the
Vice-Chairman of the Board of Directors, or the President, and shall be called
by the President at the request of at least sixty-six and two-thirds percent
(66-2/3%) of the directors then serving on the Board of Directors.
SECTION 5. Notice of any special meeting shall be given at 24 hours
before the time such special meeting is to be held. Said notice shall be in
writing and delivered personally or by commercial courier, electronic mail or
facsimile, to each director at his business address, or by telegram. If notice
be given by facsimile or electronic mail, such notice shall be deemed to be
delivered upon confirmation of the transmission of the notice to the business
address of the director. If notice be given by courier, such notice shall be
deemed to be delivered when the notice is delivered to the commercial courier.
Any director may waive notice of any 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 to the
transaction of any business because the meeting is not lawfully called or
convened. Neither the business to
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be transacted at, nor the purpose of, any regular or special meeting of the
Board of Directors need be specified in the notice or waiver of notice of such
meeting.
SECTION 6. At all meetings of the Board of Directors, or of a committee
thereof, a majority of the 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, or such committee, except as may be otherwise specifically provided
by statute or by the Certificate of Incorporation. If a quorum shall not be
present at any meeting of the Board of Directors, or such committee, 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. Unless otherwise restricted 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 members of the Board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the Board or committee.
SECTION 8. By resolution of the Board of Directors, the directors may
be paid their expenses, if any, of attendance at each meeting of the Board of
Directors, and may be paid compensation for attendance at each meeting of the
Board of Directors or fixed compensation as a director or both. No such payment
shall preclude any director from serving the Corporation in any other capacity
and receiving compensation therefor.
SECTION 9. Nominations for election to the Board of Directors shall be
made by the Nominating Committee of the Board of Directors, or if none, by the
Board of Directors. Any stockholder of any outstanding class of capital stock
entitled to vote for the election for directors may nominate one or more persons
for election as directors at an annual meeting of the stockholders only in
accordance with the nomination procedure herein set forth. Nominations by a
stockholder shall be made only by delivery of written notice of such
stockholder's intent to make such nomination or nominations, either by personal
delivery or by United States mail, postage prepaid, to the Secretary of the
Corporation not later than December 1 in the year preceding the annual meeting
at which the nomination(s) is proposed to be made or such other date as may be
established by the Board of Directors for a particular annual meeting by written
notice to the stockholders. Each such notice shall be set forth: (a) the name
and address of the stockholder, as they appear on the Corporation's books, who
intends to make the nomination and the name and address of the person or persons
to be nominated; (b) a representation that the stockholder is a holder of shares
of the Corporation entitled to vote at such meeting and a representation that
the stockholder intends to be a holder on date of the meeting and to appear in
person or by proxy to nominate the person or persons specified in the notice;
(c) a description of all arrangements or understandings between the 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 the
stockholder; (d) such other information regarding each nominee proposed by such
stockholder as would be required to be included in a proxy statement
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filed pursuant to the proxy rules of the Securities and Exchange Commission had
the Board of Directors solicited proxies for the election of such nominee at the
meeting; and (e) the consent of each nominee to serve as a director of the
Corporation if so elected. The Board of Directors shall have no obligation to
solicit proxies from the stockholders for election of any directors other than
those nominated by the Nominating Committee or the Board of Directors, as the
case may be. The presiding officer at the meeting of the stockholders may refuse
to acknowledge the nomination of any person not made in compliance with the
foregoing procedure.
SECTION 10. Members of the Board of Directors, or any committee
designated by the Board of Directors, may participate in a meeting thereof by
means of conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each other, and
participation in a meeting pursuant to this By-Law shall constitute presence in
person at such meeting.
SECTION 11. After the first annual meeting of the Stockholders, no
person shall be nominated to serve on the Board of Directors if such person
would be 72 years of age on or after January 1 of the first year of the term for
which such person is proposed to be nominated.
ARTICLE IV
COMMITTEES OF THE BOARD OF DIRECTORS
SECTION 1.
(a) There may be an Executive Committee of the Board of
Directors to be comprised of at least three (3) directors. Unless another member
is designated, the Chairman of the Executive Committee or the Chairman of the
Board of Directors shall be designated as Chairman of the Executive Committee.
The Executive Committee shall include the Chairman of the Board of Directors,
the Vice Chairman of the Board of Directors, and the Chief Executive Officer (if
different than the Chairman of the Board). The members of the Executive
Committee shall be nominated by the Chairman of the Board of Directors subject
to ratification by the Board of Directors.
(b) During the intervals between the meetings of the
Board of Directors, the Executive 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, subject to Article IV, Section 6 below, and may
authorize the seal of the Corporation to be affixed to all papers which may
require it; provided, however, that the Executive Committee shall not have the
power to amend or repeal any resolution of the Board of Directors that by its
terms shall not be subject to amendment or repeal by the Executive Committee, or
any resolution of the Board of Directors concerning the establishment or
membership of the Executive Committee, and the
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Executive Committee shall not have the authority of the Board of Directors in
reference to matters required by law to be passed upon by the full Board.
(c) The Executive Committee shall meet from time to time
on call of its Chairman. Meetings of the Executive Committee may be held at such
place or places, within or without the State of Delaware, as the Executive
Committee shall determine or as may be specified or fixed in the respective
notices or waivers of such meetings. The Executive Committee may fix its own
rules of procedure, including provision for notice of its meetings. It shall
keep a written record of its proceedings and shall report these proceedings to
the Board of Directors at the meeting thereof held next after they have been
taken.
(d) The Executive Committee shall act by majority vote of
its members.
SECTION 2.
(a) There is hereby created a Nominating Committee of the
Board of Directors to be comprised of at least three (3) directors appointed by
the Chairman of the Board of Directors, one of whom shall be designated as
Chairman of the Nominating Committee. The Nominating Committee shall be
appointed at the first meeting of the Board of Directors following the annual
meeting of the stockholders.
(b) The Nominating Committee so appointed will be
authorized to field a slate of candidates for positions on the Board of
Directors becoming vacant at the next annual meeting of the stockholders of the
Corporation or becoming vacant as a result of a vacancy on the Board of
Directors.
(c) The Nominating Committee shall meet from time to time
on call of its Chairman. Meetings of the Nominating Committee may be held at
such place or places, within or without the State of Delaware, as the Nominating
Committee shall determine or as may be specified or fixed in the respective
notices or waivers of such meetings. The Nominating Committee may fix its own
rules of procedure, including provision for notice of its meetings. It shall
keep a written record of its proceedings and shall report these proceedings to
the Board of Directors at the meeting thereof held next after they have been
taken.
(d) The Nominating Committee shall act by a majority vote
of its members.
SECTION 3.
(a) There is hereby created a Audit Committee of the
Board of Directors to be comprised of at least three (3) directors, all of whom
shall be non-employee directors and one of whom shall be designated as Chairman
of the Audit Committee. The members of the Audit Committee shall be nominated by
the Chairman of the Board of Directors subject to ratification by the Board of
Directors.
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(b) The Audit Committee shall recommend a formal written
charter for adoption by the Board of Directors. The Charter shall specify (i)
the scope of the Audit Committee's responsibilities and how it carries out those
responsibilities, including structure, processes and membership requirements;
(ii) that the outside auditor is ultimately accountable to the Board of
Directors and the Audit Committee of the Corporation, that the Audit Committee
and Board of Directors have the ultimate authority and responsibility to select,
evaluate, and where appropriate, replace the outside auditor (or to nominate the
outside auditor to be proposed for shareholder approval in a proxy statement to
the stockholder); (iii) that the Audit Committee is responsible for ensuring
that the outside auditor submits on a periodic basis to the Audit Committee a
formal written statement delineating all relationships between the auditor and
the Corporation, for actively engaging in a dialogue with the outside auditor
with respect to any disclosed relationships or services that may impact the
objectivity and independence of the outside auditor and for recommending that
the Board of Directors take appropriate action in response to the outside
auditor's report to satisfy itself of the outside auditor's independence; and
(iv) such other matters as may otherwise be required to be addressed by the
rules and regulations of the Securities and Exchange Commission and the New York
Stock Exchange or other applicable regulatory authorities and as may be
desirable to the Audit Committee. The Audit Committee shall review the Charter
annually, reassess the adequacy of the Charter, and recommend any proposed
changes to the Charter for adoption by the Board of Directors.
(c) The Audit Committee shall meet from time to time on
call of its Chairman. Meetings of the Audit Committee may be held at such place
or places, within or without the State of Delaware, as the Audit Committee shall
determine or as may be specified or fixed in the respective notices or waivers
of such meetings. The Audit Committee may fix its own rules of procedure,
including provision for notice of its meetings. It shall keep a written record
of its proceedings and shall report these proceedings to the Board of Directors
at the meeting thereof held next after they have been taken.
(d) The Audit Committee shall act by a majority vote of
its members.
SECTION 4.
(a) There is hereby created a Compensation Committee of
the Board of Directors to be comprised of at least three (3) directors, one of
whom shall be designated as Chairman of the Compensation Committee. The members
of the Compensation Committee shall be nominated by the Chairman of the Board of
Directors subject to ratification by the Board of Directors.
(b) The Compensation Committee so appointed will be
authorized to recommend to the Board of Directors from time to time the
compensation to be made to all officers, directors and committee members
(hereinafter "Executive Compensation") of the
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Corporation. The compensation may include but is not limited to salary, bonus,
stock options, stock appreciation rights, restricted stock awards, other annual
compensation, deferred compensation, retirement benefits, and any mixture
thereof as the Compensation Committee deems appropriate in light of the
performance of the Corporation.
(c) The Compensation Committee shall meet from time to
time on call of its Chairman. Meetings of the Compensation Committee may be held
at such place or places, within or without the State of Delaware, as the
Compensation Committee shall determine or as may be specified or fixed in the
respective notices or waivers of such meetings. The Compensation Committee may
fix its own rules of procedure, including provision for notice of its meetings.
It shall keep a written record of its proceedings and shall report these
proceedings to the Board of Directors at the meeting thereof held next after
they have been taken.
(d) The Compensation Committee shall act by a majority
vote of its members.
SECTION 5. The Board of Directors, by resolution adopted by a majority
of the entire Board, may create one or more additional committees, which shall
have and may exercise such powers of the Board of Directors as may be determined
from time to time by the Board of Directors. Each committee shall be comprised
of at least three (3) directors appointed by the Chairman of the Board of
Directors subject to ratification by the Board of Directors.
SECTION 6. No committee of the Board of Directors shall have the power
or authority to approve or adopt, or recommend to stockholders, any action or
matter expressly required by applicable law to be submitted to stockholders for
approval or to adopt, amend or repeal any By-Law of the Corporation. No
committee of the Board of Directors shall have the power or authority to declare
a distribution, or dividend or to authorize the issuance of stock. Any committee
of the Board of Directors, and each member thereof, shall serve at the pleasure
of the Board of Directors.
ARTICLE V
NOTICES
SECTION 1. Whenever, under the provisions of the statutes or of the
Certificate of Incorporation or of these By-Laws, notice is required to be given
to any stockholder, it shall not be construed to mean personal notice, but such
notice may be given in writing, by mail, addressed to such 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.
SECTION 2. Whenever any notice is required to be given under the
provisions of the statutes or of the Certificate of Incorporation or of these
By-Laws, 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 VI
OFFICERS
SECTION 1. The officers of the Corporation shall be a Chairman of the
Board of Directors, a Chief Executive Officer, one or more Vice Chairmen of the
Board of Directors, a President, one or more Vice Presidents, a Treasurer, a
Secretary, and such Assistant Treasurers, Assistant Secretaries, and other
officers (including, without limitation, a Chief Operating Officer) as may from
time to time be elected or appointed as herein provided. Any two or more offices
may be held by the same person. Two or more offices may be held by the same
person but an officer shall not execute, acknowledge or verify an instrument in
more than one capacity if the instrument is required by law or the Certificate
of Incorporation or By-Laws to be executed, acknowledged or verified by two or
more officer.
SECTION 2. The officers of the Corporation shall be elected annually by
the Board of Directors at the regular meetings of the Board of Directors held
after each annual meeting of the stockholders. If the election of officers shall
not be held at such meeting, such election shall be held as soon thereafter as
is practicable. Each officer shall hold office until his or her successor shall
have been duly elected and shall have qualified, or until his or her death, or
until he or she shall resign or shall have been removed in the manner
hereinafter provided. The Board of Directors or the Chairman of the Board may
appoint agents and employees to serve for such time and to have such duties and
authority as the Board of Directors or the Chairman of the Board may determine.
SECTION 3. Any officer or agent elected or appointed by the Board of
Directors or the Chief Executive Officer may be removed, with or without cause,
at any time, by the Board of Directors, but such removal shall be without
prejudice to the contract rights, if any, of the person so removed. Election or
appointment of an officer or agent shall not of itself create any contract right
in favor of such officer or agent.
SECTION 4. Vacancies occurring in any office filled by the Board of
Directors because of death, resignation, removal, and disqualification or
otherwise, shall be filled by the Nominating Committee of the Board of
Directors, or if none, by the Board of Directors, for the unexpired portion of
the term. A vacancy in any other office for any reason shall be filled by the
Chairman of the Board of Directors for the unexpired portion of the term.
SECTION 5. The Chairman of the Board of Directors shall, when present,
preside at all meetings of the stockholders and of the Board of Directors.
Unless otherwise determined by the Board of Directors, the Chairman of the Board
of Directors shall be the Chief Executive Officer of the Corporation, and in
general shall perform all duties incident to the office of the Chairman of the
Board of Directors and such other duties as may be prescribed by the Board of
Directors from time to time.
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SECTION 6. The Chief Executive Officer, subject to the control of the
Board of Directors, shall in general supervise control of the business and
affairs of the Corporation. The Chief Executive Officer may sign, with the
Secretary or any Assistant Secretary, certificates for shares of the
Corporation, any deeds, mortgages, bonds, contracts, or other instruments which
the Board of Directors has authorized to be executed, except in cases where the
signing and execution thereof shall be expressly delegated by the Board of
Directors or by these By-Laws to some other officers or agent of the
Corporation, or shall be required by law to be otherwise signed or executed; and
in general shall perform all duties incident to the office of the Chief
Executive Officer and such other duties as may be prescribed by the Board of
Directors from time to time.
SECTION 7. The Vice Chairman of the Board of Directors (or in the event
there be more than one Vice Chairman, the Vice Chairman in the order designated
by the Board of Directors at the time of their election or from time to time
thereafter, or in the absence of any designation, then in the order of the Vice
Chairman who has held such office for the longest consecutive period) shall
preside at meetings of the stockholders and the Board of Directors in the
absence of the Chairman of the Board of Directors, or in the event of his or her
death, inability or refusal to act. The Vice Chairman of the Board of Directors
shall perform all duties incident to the office of Vice Chairman of the Board of
Directors and such other duties as from time to time may be assigned to him or
her by the Board of Directors or the Chairman of the Board of Directors.
SECTION 8. The Chief Operating Officer, subject to the control of the
Board of Directors and the Chief Executive Officer, shall in general supervise
the administrative affairs of the Corporation. The Chief Operating Officer may
sign, with the Secretary or an Assistant Secretary, certificates for shares of
the Corporation, any deeds, mortgages, bonds, contracts, or other instruments
which the Board of Directors has authorized to be executed, except in cases
where the signing and execution thereof shall be expressly delegated by the
Board of Directors or by these By-Laws to some other officers or agent of the
Corporation, or shall be required by law to be otherwise signed or executed; and
in general shall perform all duties incident to the office of the Chief
Operating Officer and such other duties as may be prescribed by the Board of
Directors or the Chief Executive Officer from time to time.
SECTION 9. The President shall have such administrative and supervisory
duties as are assigned to the President by the Board of Directors or the Chief
Executive Officer. The President may sign, with the Secretary or an Assistant
Secretary, certificates for shares of the Corporation, any deeds, mortgages,
bonds, contracts, or other instruments which the Board of Directors has
authorized to be executed, except in cases where the signing and execution
thereof shall be expressly delegated by the Board of Directors or by these
By-Laws to some other officers or agent of the Corporation, or shall be required
by law to be otherwise signed or executed; and in general shall perform all
duties incident to the office of President and such other duties as may be
prescribed by the Board of Directors from time to time.
SECTION 10. The Board may elect one or more Vice-Presidents with such
designations as
<PAGE> 13
determined by the Board. In the absence of the President or in the event of
their death, inability or refusal to act, the Vice President (or in the event
there be more than one Vice President, the Vice Presidents in the order
designated by the Board of Directors at the time of their election or from time
to time thereafter, or in the absence of any designation, then in the order of
the Vice President who has held such office for the longest period) shall
perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. Each Vice
President shall perform such other duties as from time to time may be assigned
to him or her by the Chief Executive Officer, the Chief Operating Officer, or by
the Board of Directors.
SECTION 11. The Secretary shall: (a) keep the minutes of the
proceedings of the stockholders and of the Board of Directors (including each
committee of the Board of Directors) in one or more books provided for that
purpose; (b) see that all notices are duly given in accordance with the
provisions of these By-Laws or as required by law; (c) be custodian of the
corporate records and of the seal of the Corporation and see that the seal of
the Corporation is affixed to all documents the execution of which on behalf of
the Corporation under its seal is duly authorized; (d) keep a register of the
post office address of each stockholder which shall be furnished to the
Secretary by such stockholder; (e) sign with the Chairman of the Board of
Directors, Vice Chairman of the Board of Directors, President, or a Vice
President, certificates for shares of the Corporation, the issuance of which
shall have been authorized by resolution of the Board of Directors; (f) have
general charge of the stock transfer books of the Corporation; and (g) in
general perform all duties incident to the office of Secretary and such other
duties as from time to time may be assigned to him or her by the Chief Executive
Officer, the Chief Operating Officer, or by the Board of Directors.
SECTION 12. The Treasurer shall: (a) have charge and custody of and be
responsible for all funds and securities of the Corporation; (b) receive and
give receipts for moneys due and payable to the Corporation from any source
whatsoever, and deposit all such moneys in the name of the Corporation in such
banks, trust companies or other depositories as shall be selected by the Board
of Directors; and (c) in general perform all of the duties as from time to time
may be assigned to him or her by the Chief Executive Officer, the Chief
Operating Officer, or by the Board of Directors. If required by the Board of
Directors, the Treasurer shall give a bond for the faithful discharge of his or
her duties in such sum and with such surety or sureties as the Board of
Directors shall determine.
SECTION 13. The Assistant Treasurers shall perform the duties of the
Treasurer during his absence or incapacity. The Assistant Secretaries shall
perform the duties of the Secretary during his absence or incapacity. The
Assistant Secretaries may sign with the Chairman of the Board of Directors, Vice
Chairman of the Board of Directors, President, or a Vice President certificates
for shares of the Corporation the issuance of which shall have been authorized
by a resolution of the Board of Directors. The Assistant Secretaries and
Assistant Treasurers, in general, shall perform such duties as shall be assigned
to them by the Secretary or the Treasurer, respectively, by the Chief Executive
Officer, the Chief Operating Officer, or by the Board of Directors. The
Assistant Treasurers shall, if required by the Board of Directors, give bonds
for the faithful
<PAGE> 14
discharge of their duties in such sums and with such sureties as the Board of
Directors shall determine. The Assistant Secretaries and Assistant Treasurers,
in general, shall perform such duties as shall be assigned to them by the
Secretary or the Treasurer, respectively, or by the Chief Executive Officer, the
Chief Operating Officer, or the Board of Directors.
SECTION 14. The salaries of all officers, employees and agents of the
Corporation, including the Chairman of the Board of Directors, Chief Executive
Officer, Vice Chairman of the Board of Directors, Chief Operating Officer,
President, Secretary and Treasurer, shall be fixed from time to time by the
Board of Directors; provided, however, that the Board of Directors may delegate
to any committee of the Board of Directors, or to any officer(s) of the
Corporation, the power to fix the compensation of any officer, employee or agent
of the Corporation. No officer shall be prevented from receiving such salary by
reason of the fact that he or she is also a director of the Corporation.
ARTICLE VII
CERTIFICATES OF STOCK
SECTION 1. Every holder of stock in the Corporation shall be entitled
to have a certificate, signed by, or in the name of, the Corporation by the
Chairman of the Board of Directors, the President, or a Vice President, and the
Secretary or an Assistant Secretary, of the Corporation, certifying the number
of shares owned by such holder in the Corporation.
SECTION 2. Where a certificate is countersigned (l) by a transfer agent
other than the Corporation, or (2) by a registrar other than the Corporation,
any other signature on the 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, it 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. The Board of Directors may direct a new certificate or
certificates to be issued in place of any certificate or certificates
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 or certificates, 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 certificates, or his
legal representative, to advertise the same in such manner as it shall require
and/or to give the Corporation a bond or indemnity agreement 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. Upon surrender to the Corporation or the transfer agent of
the Corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignment or authority to transfer, it shall be
the duty of the Corporation, subject to any
<PAGE> 15
restrictions on transfer noted conspicuously on such certificate or imposed by
law, to issue a new certificate to the person entitled thereto, cancel the old
certificate and record the transaction upon its books.
SECTION 5. In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of the stockholders or any
adjournment thereof, or 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 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 subject to
the provisions of Article II, Section 10 hereof.
SECTION 6. 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 found to recognize any equitable or other claim to 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 the applicable law.
ARTICLE VIII
GENERAL PROVISIONS
SECTION 1. 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, pursuant to law.
Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the Certificate of Incorporation.
SECTION 2. 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
directors from time to time, in their absolute discretion, think 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 such other
purpose as the directors shall think conducive to the interest of the
Corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
SECTION 3. 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. The fiscal year of the Corporation shall be as established
from time to time by the Board of Directors.
<PAGE> 16
SECTION 5. 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 IX
INDEMNIFICATION
SECTION 1. The Corporation shall indemnify and hold harmless 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 the person is or was a director,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by the person in connection with
such action, suit or proceeding if the person acted in good faith and in a
manner the person 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 the person's 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 the person 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 the person's
conduct was unlawful.
SECTION 2. The Corporation shall indemnify and hold harmless 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 the person is or was
a director, officer, employee or agent of the Corporation, or is or was serving
at the request of the Corporation, as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably incurred by
the person in connection with the defense or settlement of such action or suit
if the person acted in good faith and in a manner the person 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. To the extent that a present or former director, officer,
employee or agent of the Corporation has been successful on the merits or
otherwise, including the dismissal of an
<PAGE> 17
action without prejudice, the disposition of a claim or issue by partial
summary judgment, or any other partial success, or the settlement of any action
without admission of liability, in defense of any action, suit or proceeding
referred to in Sections 1 or 2 of this Article IX, or in defense of any claim,
issue or matter therein, such person shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by such person in
connection therewith.
SECTION 4. Expenses incurred in defending or investigating a civil,
criminal, administrative, or investigative action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit
or proceeding upon receipt of an undertaking by or on behalf of the director,
officer, employee or agent of the Corporation to repay such amount if it shall
ultimately be determined that such person is not entitled to be indemnified by
the Corporation.
SECTION 5. The indemnification and advancement of expenses provided by,
or granted pursuant to, the other portions of this Article IX shall not be
deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any By-Law, agreement, vote of
stockholders or disinterested directors, court order or otherwise, both as to
action in such person's official capacity and as to action in another capacity
while holding such office. It is the policy of the Corporation that
indemnification shall be made to the fullest extent permitted by law (as it
presently exists or may hereafter be amended). All rights to indemnification
under this Article IX shall be deemed to be provided by a contract between the
Corporation and the director, officer, employee or agent of the Corporation who
serves in such capacity at any time while these By-Laws and other relevant
provisions of the General Corporation Law of the State of Delaware and other
applicable law, if any, are in effect. Any repeal or modification thereof shall
not effect any rights or obligations then existing.
SECTION 6. Any indemnification or advance shall be made promptly and in
any event within forty-five (45) days, upon the written request of the director,
officer, employee or agent of the Corporation, unless a determination is
reasonably and promptly made that such director, officer, employee or agent
failed to meet the applicable standard of conduct set forth in Sections 1 or 2
of this Article IX. Such determination shall be made (l) by the Board of
Directors by a majority vote of a quorum consisting of disinterested directors,
or (2) by a committee of such directors designated by majority vote of such
directors, even though less than a quorum, or (3) if such a quorum is not
obtainable, or, even if obtainable a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or (4) by the
stockholders. If the request for indemnification involves an action, suit or
proceeding that arises from the merger, consolidation, reorganization,
liquidation, sale of all or substantially all of the assets, or other
extraordinary transaction of the Corporation, the inquiry and resolution thereof
required by this Section 6, at the option of the person seeking indemnification,
shall be made by a neutral person mutually acceptable to the Corporation and the
person seeking indemnification (the "Neutral Person"). If no disposition of such
claim for indemnification is made within forty-five (45) days, a favorable
determination of entitlement to indemnification shall be deemed to have been
made. The expenses (including attorney's fees) incurred by the person seeking
indemnification
<PAGE> 18
in connection with successfully establishing such person's right to
indemnification, in whole or in part, shall also be indemnified by the
Corporation.
SECTION 7. The indemnification and advancement of expenses provided by,
or granted pursuant to, this Article IX shall continue as to a person who has
ceased to be a director, officer, employee or agent of the Corporation and shall
inure to the benefit of the heirs, executors and administrators of such person.
SECTION 8. Neither the repeal or modification of this Article IX nor
the adoption of any provision of the Certificate of Incorporation or the By-Laws
inconsistent with this Article IX shall adversely affect the rights of any
director, officer, employee or agent of the Corporation with respect to causes
of action, suits or claims that accrue or arise prior to such repeal,
modification or adoption of an inconsistent provision. If this Article IX or any
portion thereof shall be invalidated on any ground by any court of competent
jurisdiction, then the Corporation shall nevertheless indemnify each director,
officer, employee and agent against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement with respect to any action, suit
or proceeding whether civil, criminal, administrative or investigative, and
whether internal or external, including a grand jury proceeding and an action or
suit brought by or in the right of the Corporation, to the fullest extent
permitted by applicable portions of this Article IX that shall not have been
invalidated, or by any other applicable law.
SECTION 9. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
Corporation against any liability asserted against such person and incurred by
such person in any such capacity, or arising out of such person's status as
such, whether or not the Corporation would have the power to indemnify such
person against such liability under the provisions of this Article IX.
SECTION 10. Upon resolution adopted by the Board of Directors, the
Corporation may establish a trust or other designated account, grant a security
interest or use other means (including, without limitation, a letter of credit),
to ensure the payment of certain of its obligations arising under this Article
IX and/or agreements which may be entered into between the Corporation and
directors, officers, employees, or agents of the Corporation from time to time.
SECTION 11. For purposes of this Article X, references to "the
Corporation" shall include, in addition to the resulting or surviving
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 to indemnify its directors,
officers and employees or agents, so that any person who is or was a director,
officer, employee or agent of such constituent corporation, or is or was serving
at the request of such constituent corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under this Article IX with respect
to the resulting or surviving corporation as such person would have with respect
to such constituent corporation if its separate existence had continued;
references to "other enterprises" shall include
<PAGE> 19
employee benefit plans; references to "fines" shall include any excise taxes
assessed against a person with respect to any employee benefit plan; 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, officer, employee or agent with respect
to any employee benefit plan, its participants, or beneficiaries; references to
"director, officer, employee or agent of the Corporation" shall include any
person who is or was a director, officer, employee or agent of the Corporation,
or is or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise; and a person who acted in good faith and in a manner such
person 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 IX.
SECTION 12. If a director, officer, employee or agent of the
Corporation is entitled to indemnification under Sections 1 or 2 of this Article
IX for a portion of expenses, including attorneys' fees, judgments, penalties,
fines, and amounts paid in settlement, but not for the total amount, the
Corporation shall indemnify the director, officer, employee or agent of the
Corporation for the portion of the expenses, judgments, penalties, fines, or
amounts paid in settlement for which such director, officer, employee or agent
of the Corporation is entitled to be indemnified.
SECTION 13. Each and every paragraph, sentence, term and provision of
this Article IX shall be considered severable in that, in the event a court
finds any paragraph, sentence, term or provision to be invalid or unenforceable,
the validity and enforceability, operation, or effect of the remaining
paragraphs, sentences, terms, or provisions shall not be affected, and this
Article IX shall be construed in all respects as if the invalid or unenforceable
matter had been omitted.
SECTION 14. If the Delaware General Corporation Law is amended to
authorize further expansion of the rights of any director, officer, employee or
agent of the Corporation to indemnification by the Corporation, then the rights
of such director, officer, employee or agent of the Corporation to such
indemnification hereunder shall be expanded to the fullest extent permitted by
the Delaware General Corporation Law, as so amended.
ARTICLE X
AMENDMENTS
SECTION 1. To the extent permitted by the Certificate of Incorporation,
these By-Laws may be altered, amended or repealed or new By-Laws may be adopted
by the stockholders or by the Board of Directors at any regular meeting of the
stockholders or of the Board of Directors or at any special meeting of the
stockholders or of the Board of Directors if notice of such alteration,
amendment, repeal or adoption of new By-Laws be contained in the notice of such
meeting. Amendment of these By-Laws by the Board of Directors shall require the
vote of not less than a majority of the members of the Board of Directors then
in office.
