BYLAWS
AS AMENDED THROUGH MAY 26, 2000
OF
CERNER CORPORATION
Offices
1. Registered Office and Registered Agent. The
location of the registered office and the name of the
registered agent of the corporation in the State of Delaware
shall be as stated in the certificate of incorporation or as
determined from time to time by the board of directors and
on file in the appropriate public offices of the State of
Delaware pursuant to applicable provisions of law.
2. Corporate Offices. The corporation may have
such other corporate offices and places of business anywhere
within or without the State of Delaware as the board of
directors may from time to time designate or the business of
the corporation may require.
Seal
3. Corporate Seal. The corporate seal shall have
inscribed thereon the name of the corporation and the words
"Corporate Seal, Delaware". The corporate seal may be used
by causing it or a facsimile thereof to be impressed or
affixed or in any manner reproduced.
Stockholders, Meetings
4. Place of Meetings. All meetings of the
stockholders shall be held at the offices of the corporation
in the City of North Kansas City, State of Missouri, or at
such other place either within or without the State of
Delaware as shall be designated 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.
5. Annual Meeting. An annual meeting of the
stockholders of the corporation shall be held on the second
Tuesday in May of each year, if not a legal holiday, and if
a legal holiday, then on the next secular day following, 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.
At an annual meeting of the stockholders, only such
business shall be conducted as shall have been properly
brought before the meeting. To be properly brought before
an annual meeting, business must be (a) specified in the
notice of meeting (or any supplement thereto) given by or at
the direction of the board of directors, (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 a stockholder. For business to be
properly brought before an annual meeting by a stockholder,
the stockholder must have given timely notice thereof in
writing to the Secretary of the corporation. To be timely,
a stockholder's notice must be delivered to or mailed and
received at the principal executive offices of the
corporation, not less than one hundred twenty (120) days
prior to the date of such meeting (as set forth in this
paragraph 5). A stockholder's notice to the Secretary shall
set forth as to each matter the stockholder proposes to
bring before the annual meeting (a) a brief description of
the business desired to be brought before the annual
meeting, (b) the name and address, as they appear on the
corporation's books, of the stockholder proposing such
business, (c) the class and number of shares of the
corporation which are beneficially owned (as defined in
paragraph NINTH of the certificate of incorporation) by the
stockholder, (d) any material interest of the stockholder in
such business and (e) all other information with respect to
each such matter as would have been required to be included
in a proxy statement filed pursuant to Regulation 14A (17
CFR 240.14a-1 et seq.) as then in effect under the
Securities Exchange Act of 1934, as amended, had proxies
been solicited by the board of directors with respect
thereto. Notwithstanding anything in the Bylaws to the
contrary, no business shall be conducted at an annual
meeting except in accordance with the procedures set forth
in this paragraph 5. The presiding officer of an annual
meeting shall, if the facts warrant, determine that business
was not properly brought before the meeting in accordance
with the provisions of this paragraph 5, and if he should so
determine, he shall so declare to the meeting and any such
business not properly brought before the meeting shall not
be transacted.
6. Special Meetings. Special meetings of the
stockholders may be held for any purpose or purposes, unless
otherwise prescribed by statute or by the certificate of
incorporation. Except as otherwise required by law and
subject to the rights, if any, of the holders of any class
or series of stock having a preference over the Common Stock
as to dividends or upon liquidation, special meetings of the
stockholders of the corporation may be called only by the
chairman of the board, by the president, or by the board of
directors pursuant to a resolution approved by a majority of
the entire board of directors.
The "call" and the "notice" of any such meeting
shall be deemed to by synonymous.
7. Voting. At all meetings of stockholders, every
stockholder having the right to vote shall be entitled to
vote in person, or by proxy appointed by an instrument in
writing subscribed by such stockholder and bearing a date
not more than three years prior to said meeting, unless said
instrument shall provide for a longer period. Unless
otherwise provided by the certificate of incorporation or
resolutions adopted by the board of directors in accordance
with the General Corporation Law of Delaware, each
stockholder shall have one vote for each share of stock
entitled to vote at such meeting registered in his name on
the books of the corporation. At all meetings of
stockholders the voting may be otherwise than by ballot,
including the election of directors, except that, unless
otherwise provided by the certificate of incorporation, any
qualified voter may demand a vote by ballot on any matter,
in which event such vote shall be taken by ballot.
8. Quorum. The holders of a majority of the
outstanding shares of stock entitled to vote thereat,
present in person or represented by proxy, shall constitute
a quorum at all meetings of the stockholders for the
transaction of any business, except as otherwise provided by
law, by the certificate of incorporation, or by these
bylaws. Every decision of a majority in amount of stock of
such quorum shall be valid as a corporate act, except in
those specific instances in which a larger vote is required
by law or by the certificate of incorporation or by these
bylaws.
If the holders of a majority of the outstanding
shares of stock entitled to vote not be present at a meeting
of stockholders, the holders of a majority of the stock
present in person or by proxy at such meeting shall have
power successively to adjourn the meeting from time to time
to a specified time and place, without notice to anyone
other than by announcement at the meeting, until a quorum
shall be present in person or by proxy. At such adjourned
meeting at which a quorum shall be present in person or by
proxy, any business may be transacted which might have been
transacted at the original meeting which was adjourned. If
the adjournment is for more than thirty (30) days, or if
after 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.
9. Stock Ledger. The original or duplicate stock
ledger shall be the only evidence as to who are the
stockholders entitled to examine the list required under
paragraph 10 of these bylaws or the books of the
corporation, or to vote in person or by proxy at any meeting
of the stockholders.
10. Stockholders, Lists. The secretary or
assistant secretary, who shall have charge of the stock
ledger, shall prepare and make, at least ten (10) days
before every meeting of stockholders, a complete list of the
stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name
of each stockholder. Such list shall be open to the
examination of any stockholder, for any purpose germane to
the meeting, during ordinary business hours, for a period of
at least ten (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 time
and place of the meeting during the whole time thereof, any
may be inspected by any stockholder who is present.
11. Notice. Written or printed notice of each
meeting of the stockholders, whether annual or special,
stating the place, date and hour of the meeting, and, in the
case of a special meeting, the purpose or purposes thereof,
shall be given to each stockholder of record of the
corporation entitled to vote at such meeting, either
personally or by mail, not less than ten (10) days nor more
than sixty (60) days prior to the meeting. If mailed, such
notice shall be deemed to be delivered when it is deposited
in the United States mail with postage thereon addressed to
the stockholder at his address as it appears on the records
of the corporation.
12. Stockholder Action; How Taken. No action
required or permitted to be taken at any annual or special
meeting of stockholders of the corporation may be taken
without a meeting, and the power of stockholders to consent
in writing, without a meeting, to the taking of any action
is specifically denied.
13. Procedure. The order of business and all other
matters of procedure at every meeting of the stockholders
may be determined by the presiding officer. The board of
directors shall appoint two or more Inspectors of Election
to serve at every meeting of the stockholders at which
directors are to be elected.
Board of Directors
14. Management. The property, business and affairs
of the corporation shall be managed by or under the
direction of a board of directors. The number of directors
of the corporation (including directors to be elected by the
holders of any one or more series of Preferred Stock voting
separately as a class or classes) shall be six (6). As used
in these bylaws, the terms "whole board" or "whole board of
directors" mean the total number of directors which the
corporation would have if there were no vacancies. In
addition to the powers and authorities by these bylaws and
the certificate of incorporation expressly conferred upon
it, the board of directors may exercise all such powers of
the corporation, and do all such lawful acts and things as
are not by statute or by the certificate of incorporation or
by these bylaws directed or required to be exercised or done
by the stockholders.
15. Classes. The members of the whole board of
directors, other than those who may be elected by the
holders of any Preferred Stock or series thereof, shall be
divided into three (3) classes (to be designated as Class I,
Class II and Class III), with the term of office of one
class expiring each year. Notwithstanding the foregoing,
and except as otherwise required by law, whenever the
holders of any one or more series of Preferred Stock shall
have the right, voting separately as a class, to elect one
or more directors of the corporation, the terms of the
director or directors elected by such holders shall expire
at the next succeeding annual meeting of stockholders.
Subject to the foregoing, at each annual meeting of
stockholders, the successors to the class of directors whose
term shall then expire shall be elected to hold office for a
term expiring at the third succeeding annual meeting and
until their respective successors shall be elected and
qualified or until their respective earlier resignation or
removal.
16. Vacancies and Newly Created Directorships.
Except for directorships created pursuant to paragraph
FOURTH of the certificate of incorporation relating to the
rights of holders of Preferred Stock or any series thereof,
and except for vacancies in such directorships, any
vacancies in the board of directors for any reason, and any
newly created directorships resulting from any increase in
the authorized number of directors, may be filled by a
majority of the directors then in office, though less than
quorum, or by a sole remaining director, unless it is
otherwise provided in the certificate of incorporation or
these bylaws, and the directors so chosen shall hold office
until the next election of the class for which such
directors shall have been chosen and until their respective
successors are duly elected and qualified, or until their
earlier resignation or removal. No decrease in the number
of directors shall shorten the term of any incumbent
director.
17. Removal of Directors. Notwithstanding any
other provisions of these bylaws (and notwithstanding the
fact that some lesser percentage may be specified by law or
these bylaws), any director or the entire board of directors
of the corporation may be removed at any time, but only for
cause and only by the affirmative vote of the holders of
eighty percent (80%) or more of the Total Voting Power of
the then outstanding shares of Voting Stock, considered for
this purpose as one class (for purposes of this paragraph
17, each share of the Voting Stock shall have the number of
votes granted to it pursuant to paragraph FOURTH of the
corporation's certificate of incorporation). For the
purposes of this paragraph 17, (i) the term "Total Voting
Power" shall mean the aggregate of all votes of all
outstanding shares of Voting Stock; and (ii) the term
"Voting Stock" shall mean the shares of all classes of
capital stock of the corporation entitled to vote on removal
of any director or the entire board of directors in the
manner provided in this paragraph 17 (except that if the
next succeeding sentence is operative, then the outstanding
shares of Preferred Stock shall not be considered "Voting
Stock" for purposes of this paragraph 17). Notwithstanding
the foregoing, and except as otherwise required by law,
whenever the holders of any one or more series of Preferred
Stock shall have the right, voting separately as a class, to
elect one or more directors of the corporation, the
foregoing provisions of this paragraph 17 shall not apply
with respect to the director or directors elected by such
holders of Preferred Stock.
As used in these bylaws, the term "for cause" is
hereby exclusively defined and limited to mean conviction of
a felony by a court of competent jurisdiction where such
conviction is no longer subject to direct appeal, or an
adjudication by a court of competent jurisdiction of
liability for negligence, or misconduct, in the performance
of the director's duty to the corporation in a matter of
substantial importance to the corporation, where such
adjudication is no longer subject to direct appeal.
18. Notification of Nominations. Subject to the
rights of holders of Preferred Stock, nominations for the
election of directors may be made by the board of directors
or a proxy committee appointed by the board of directors or
by any stockholder entitled to vote in the election of
directors generally. However, any stockholder entitled to
vote in the election of directors generally may nominate one
or more persons for election as directors at a meeting only
if written notice of such stockholder's intent to make such
nomination or nominations has been given, either by personal
delivery or by Untied States mail, postage prepaid, to the
secretary of the corporation not later than (i) with respect
to an election to be held at an annual meeting of
stockholders, one hundred twenty (120) days in advance of
the date of such meeting (as set forth in paragraph 5 of
these bylaws), and (ii) with respect to an election to be
held at a special meeting of stockholders for the election
of directors, the close of business on the seventh (7th) day
following the date on which notice of such meeting is first
given to stockholders. Each such notice shall set forth:
(a) the name and address of the stockholder who intends to
make the nomination and of the person or persons to be
nominated; (b) a representation that the stockholder is a
holder of record of stock of the corporation entitled to
vote at such meeting and intends to appear in person or by
proxy at the meeting to nominate the person or persons
specified in the notice; (c) the name and address, as they
appear on the corporation's books, of such stockholder; (d)
the class and number of shares of the corporation which are
beneficially owned (as defined in paragraph NINTH of the
certificate of incorporation) by the nominating stockholder
and each nominee proposed by such stockholder; (e) a
description of all arrangements or understandings between
the nominating 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; (f) such other information regarding each
nominee proposed by such stockholder as would have been
required to be included in a proxy statement filed pursuant
to Regulation 14A (17 CFR 240.14a-1 et seq.) as then in
effect under the Securities Exchange Act of 1934, as
amended, had the nominee been nominated, or intended to be
nominated, by the board of directors; and (g) the consent of
each nominee to serve as a director of the corporation if so
elected. The chairman of the meeting may refuse to
acknowledge the nomination of any person not made in
compliance with the foregoing procedure.
19. Meetings of the Newly Elected Board - Notice.
The first meeting of the members of the board of directors
after each election with respect to a class of directors
shall be held (i) at such time and place either within or
without the State of Delaware as shall be suggested or
provided by resolution of the stockholders at the meeting at
which such election was held with respect to a class of
directors, and no notice of such meeting shall be necessary
to the newly elected directors in order legally to
constitute the meeting, provided a quorum shall be present,
(ii) if not so suggested or provided for by resolution of
the stockholders or if a quorum shall not be present, at
such time and place as shall be consented to in writing by a
majority of the newly elected directors, provided that
written or printed notice of such meeting shall be given to
each of the other directors in the same manner as provided
in paragraph 22 of these bylaws with respect to the giving
of notice for special meetings of the board except that it
shall not be necessary to state the purpose of the meeting
in such notice, or (iii) regardless of whether or not the
time and place of such meeting shall be suggested or
provided for by resolution of the stockholders, at such time
and place as shall be consented to in writing by all of the
newly elected directors.
Every director of the corporation, upon his
election, shall qualify by accepting the office of director,
and his attendance at, or his written approval of the
minutes of, any meeting of the board subsequent to his
election shall constitute his acceptance of such office; or
he may execute such acceptance by a separate writing, which
shall be placed in the minute book.
20. Regular Meetings. Regular meetings of the
board of directors may be held without notice at such times
and places either within or without the State of Delaware as
shall from time to time be fixed by resolution adopted by
the whole board of directors. Any business may be
transacted at a regular meeting.
21. Special Meetings. Special meetings of the
board of directors may be called at any time by the chairman
of the board, the president, any vice president or the
secretary, or by any two (2) or more of the directors. The
place may be within or without the State of Delaware as
designated in the notice.
22. Notice of Special Meetings. Written or printed
notice of each special meeting of the board, stating the
place, day and hour of the meeting and the purpose or
purposes thereof, shall be mailed to each director addressed
to him at his residence or usual place of business at least
three (3) days before the day on which the meeting is to be
held, or shall be sent to him by telegram, or delivered to
him personally, at least two(2) days before the day on which
the meeting is to be held. If mailed, such notice shall be
deemed to be delivered when it is deposited in the United
States mail with postage thereon addressed to the director
at his residence or usual place of business. If given by
telegraph, such notice shall be deemed to be delivered when
it is delivered to the telegraph company. The notice may be
given by any officer having authority to call the meeting.
"Notice" and "call" with respect to such meetings shall be
deemed to be synonymous. Any meeting of the board of
directors shall be a legal meeting without any notice
thereof having been given if all directors shall be present.
23. Meetings by Conference Telephone or Similar
Communications Equipment. Unless otherwise restricted by
the certificate of incorporation or these bylaws, members of
the board of directors of the corporation, or any committee
designated by the board, may participate in a meeting of the
board or committee by means of conference telephone or
similar communications equipment by means of which all
persons participating in the meeting can hear each other,
and participation in a meeting by that means shall
constitute presence in person at such meeting.
24. Quorum. Unless otherwise required by law, the
certificate of incorporation or these bylaws, a majority of
the total number of directors shall be necessary at all
meetings to constitute a quorum for the transaction of
business and, except as may be otherwise provided by law,
the certificate of incorporation or these bylaws, the act of
a majority of the directors present at any meeting at which
there is a quorum shall be the act of the board of
directors.
If at least two (2) directors or one third (1/3) of
the whole board of directors, whichever is greater, is
present at any meeting at which a quorum is not present, a
majority of the directors present at such meeting shall have
power successively to adjourn the meeting from time to time
to a subsequent date, without notice to any director other
than announcement at the meeting. At such adjourned meeting
at which a quorum is present, any business may be transacted
which might have been transacted at the original meeting
which was adjourned.
25. Standing or Temporary Committees. The board of
directors may, by resolution or resolutions passed by a
majority of the whole board, designate one (1) or more
committees, each committee to consist of one (1) or more
directors of the corporation. The board may designate one
(1) or more directors as alternate members of any committee,
who may replace any absent or disqualified member at any
meeting of the committee. In the absence or
disqualification of a member of a committee, the member of
members thereof present at any meeting and not disqualified
from voting, whether or not he or they constitute a quorum,
may unanimously appoint another member of the board of
directors to act at the meeting in the place of any such
absent or disqualified member. Any such committee, to the
extent provided in the resolution of the board of directors
or in these bylaws, shall have and may exercise all of the
powers and authority of the board of directors in the
management of the business and affairs of the corporation,
and may authorize the seal of the corporation to be affixed
to all papers which may require it; but no such committee
shall have the power or authority of the board of directors
with respect to amending the certificate of incorporation,
adopting an agreement of merger or consolidation,
recommending to the stockholders the sale, lease or exchange
of all or substantially all of the corporation's property
and assets, recommending to the stockholders a dissolution
of the corporation or a revocation of a dissolution,
amending the bylaws of the corporation, declaring a dividend
or making any other distribution to the stockholders,
authorizing the issuance of stock otherwise than pursuant to
the grant or exercise of a stock option under employee stock
option plans of the corporation, or appointing any member of
any committee of the board of directors.
Such committee or committees shall have such name
or names as may be determined from time to time by
resolution adopted by the board of directors. All
committees so appointed shall, unless otherwise provided by
the board of directors, keep regular minutes of the
transactions at their meetings and shall cause them to be
recorded in books kept for that purpose in the office of the
corporation and shall report the same to the board of
directors at its next meeting. The secretary or an
assistant secretary of the corporation may act as secretary
of the committee if the committee so requests.
26. Compensation. Unless otherwise restricted by
the certificate of incorporation, the board of directors
may, by resolution, fix the compensation to be paid
directors for serving as directors of the corporation and
may, by resolution, fix a sum which shall be allowed and
paid for attendance at each meeting of the board of
directors and may provide for reimbursement of expenses
incurred by directors in attending each meeting; provided
that nothing herein contained shall be construed to preclude
any director from serving the corporation in any other
capacity and receiving his regular compensation therefor.
Members of special or standing committees may be allowed
similar compensation for attending committee meetings.
27. Resignations. Any director may resign at any
time upon written notice to the corporation. Such
resignation shall take effect at the time specified therein
or shall take effect upon receipt thereof by the corporation
if no time is specified therein; and unless otherwise
specified therein, the acceptance of such resignation shall
not be necessary to make it effective.
28. Indemnification of Directors and Officers.
(a) Indemnification in Actions by Third Parties.
The corporation shall indemnify each person who has been 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, investigative or
appellate (other than an action by or in the right of the
corporation) by reason of the fact that such person is or
was an officer or director of the corporation or is or was
serving at the corporation's request as a director or
officer of any Other Enterprise against all liabilities and
expenses, including, without limitation, judgments, amounts
paid in settlement (provided that such settlement and all
amounts paid in connection therewith are approved in advance
by the corporation in accordance with paragraph (d) of this
paragraph 28, which approval shall not be unreasonably
withheld), attorneys' fees, ERISA excise taxes or penalties,
fines and other expenses actually and reasonably incurred by
such person in connection with such action, suit or
proceeding (including without limitation the investigation,
defense, settlement or appeal of such action, suit or
proceeding) if such person acted in good faith and in a
manner he reasonably believed to be in or not opposed to the
best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful; provided, however, that
the corporation shall not be required to indemnify or
advance expenses to any such person or person seeking
indemnification or advancement of expenses in connection
with an action, suit or proceeding initiated by such person
unless the initiation of such action, suit or proceeding was
authorized by the board of directors of the corporation.
The termination of any such action, suit or proceeding by
judgment, order, settlement, conviction or under a plea of
nolo contendere or its equivalent, shall not, of itself,
create a presumption that the person did not act in good
faith and in a manner which he reasonably believed to be in
or not opposed to the best interests of the corporation, and
with respect to any criminal action or proceeding that he
had reasonable cause to believe that his conduct was
unlawful.
(b) Indemnification in Derivative Actions. The
corporation shall indemnify each person who has been or is a
party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding by or in the
right of the corporation to procure a judgment in its favor
by reason of the fact that such person is or was an officer
of director of the corporation or is or was serving at the
corporation's request as a director or officer of any Other
Enterprise against amounts paid in settlement thereof
(provided that such settlement and all amounts paid in
connection therewith are approved in advance by the
corporation in accordance with subparagraph (d) of this
paragraph 28, which approval shall not be unreasonably
withheld) and all expenses (including attorneys' fees)
actually and reasonably incurred by such person in
connection with the defense or settlement of such action,
suit or proceeding (including without limitation the
investigation, defense, settlement or appeal of such action,
suit or proceeding) if such person acted in good faith and
in a manner such person reasonably believed to be in or not
opposed to the best interests of the corporation, except
that no indemnification under this subparagraph (b) shall be
made in respect of any claim, issue or matter as to which
such person shall have been adjudged liable to the
corporation unless and only to the extent that the court in
which the action, suit or proceeding is brought determines
upon application that, despite the adjudication of liability
and in view of all the circumstances of the case, the person
is fairly and reasonably entitled to such indemnification.
(c) Indemnification for Expenses. Notwithstanding
the other provisions of this paragraph 28, to the extent
that a person who is or was serving as a director or officer
of the corporation, or is or was serving at the request of
the corporation as a director or officer of any Other
Enterprise, has been successful on the merits or otherwise
in defense of any action, suit or proceeding referred to in
subparagraphs (a) and (b) of this paragraph 28 (including
the dismissal of any such action, suit or proceeding without
prejudice), or in defense of any claim, issue or matter
therein, he shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him in
connection therewith.
(d) Determination of Right to Indemnification.
Prior to indemnifying a person pursuant to the provisions of
subparagraphs (a) and (b) of this paragraph 28, unless
ordered by a court and except as otherwise provided by
subparagraph (c) of this paragraph 28, the corporation shall
determine that such person has met the specified standard of
conduct entitling such person to indemnification as set
forth under subparagraphs (a) and (b) of this paragraph 28.
Any determination that a person shall or shall not be
indemnified under the provisions of subparagraphs (a) and
(b) of this paragraph 28 shall be made by the board of
directors by a majority vote of a quorum consisting of
directors who were not parties to the action, suit or
proceeding, or if such quorum is not obtainable, or even if
obtainable, if a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion
or by the stockholders, and such determination shall be
final and binding upon the corporation; provided, however,
that in the event such determination is adverse to the
person or persons to be indemnified hereunder, such person
or persons shall have the right to maintain an action in any
court of competent jurisdiction against the corporation to
determine whether or not such person has met the requisite
standard of conduct and is entitled to such indemnification
hereunder. If such court action is successful and the
person or persons is determined to be entitled to such
indemnification, such person or persons shall be reimbursed
by the corporation for all fees and expenses (including
attorneys' fees) actually and reasonably incurred in
connection with any such action (including without
limitation the investigation, defense, settlement or appeal
of such action).
(e) Advancement of Expenses. Expenses (including
attorneys' fees) actually and reasonably incurred by a
person who may be entitled to indemnification hereunder in
defending an action, suit or proceeding, whether civil,
criminal, administrative, investigative or appellate, 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 such person to repay
such amount if it shall ultimately be determined that he is
not entitled to indemnification by the corporation.
Notwithstanding the foregoing, no advance shall be made by
the corporation if a determination is reasonably and
promptly made by (i) the board of directors by a majority
vote of a quorum consisting of directors who were not
parties to the action, suit or proceeding for which the
advancement is requested, (ii) if a quorum is not
obtainable, or even if obtainable, if a quorum of
disinterested directors so directs, by independent legal
counsel in a written opinion, or (iii) by the stockholders,
that, based upon the facts known to the board, counsel or
stockholders at the time such determination is made, such
person acted in bad faith and in a manner that such person
did not believe to be in or not opposed to the best interest
of the corporation, or, with respect to any criminal
proceeding, that such person believed or had reasonable
cause to believe his conduct was unlawful. In no event
shall any advance be made in instances where the board,
stockholders or independent legal counsel reasonably
determines that such person deliberately breached his duty
to the corporation or its stockholders.
(f) Non-Exclusivity. The indemnification and
advancement of expenses provided by this paragraph 28 shall
not be exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled
under any statute, under the certificate of incorporation,
bylaws, agreement, vote of stockholders or disinterested
directors, policy of insurance or otherwise, both as to
action in their official capacity and as to action in
another capacity while holding their respective offices, and
shall not limit in any way any right which the corporation
may have to make additional indemnifications with respect to
the same or different persons or classes of persons. The
indemnification and advancement of expenses provided by, or
granted pursuant to, this paragraph 28 shall continue as to
a person who has ceased to be a director, officer, employee
or agent and shall inure to the benefit of the heirs,
executors, administrators and estate of such a person.
(g) Insurance. Upon resolution passed by the board
of directors, the corporation may purchase and maintain
insurance on behalf of any person who is or was a director
or officer of the corporation, or is or was serving at the
request of the corporation as a director or officer of any
Other Enterprise, against any liability asserted against him
and incurred by him in any such capacity, or arising out of
his status as such, whether or not the corporation would
have the power to indemnify him against such liability under
the provisions of this paragraph.
(h) Vesting of Rights. The rights granted by this
paragraph 28 shall be vested in each person entitled to
indemnification hereunder as a bargained-for, contractual
condition of such person's acceptance of his election or
appointment as a director or officer of the corporation or
serving at the request of the corporation as a director of
officer of any Other Enterprise and while this paragraph 28
may be amended or repealed, no such amendment or repeal
shall release, terminate or adversely affect the rights of
such person under this paragraph 28 with respect to any act
taken or the failure to take any act by such person prior to
such amendment or repeal or with respect to any action, suit
or proceeding with respect to such act or failure to act
filed after such amendment or repeal.
(i) Definition of the "Corporation". For purposes
of this paragraph 28, references to "the corporation" shall,
if and only if the board of directors shall determine,
include, in addition to the resulting corporation, any
constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if
its separate existence had continued, would have had power
and authority to indemnify its directors or officers or
persons serving at the request of such constituent
corporation as a director or officer of any Other
Enterprise, so that any person who is or was a director or
officer of such constituent corporation, or is or was
serving at the request of such constituent corporation as a
director or officer of any Other Enterprise, shall stand in
the same position under the provisions of this paragraph 28
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.
(j) Certain Definitions. For the purpose of this
paragraph 28, references to "Other Enterprises" or "Other
Enterprise" shall include without limitation any other
corporation, partnership, joint venture, trust or employee
benefit plan; references to "fines" shall include any excise
taxes assessed on a person with respect to an employee
benefit plan; references to "defense" shall include
investigations of any threatened, pending or completed
action, suit or proceeding as well as appeals thereof and
shall also include any defensive assertion of a cross claim
or counterclaim and references to "serving at the request of
the corporation" shall include any service as a director or
officer of a corporation which imposes duties on, or
involves services by, such director or officer with respect
to an employee benefit plan, its participants, or
beneficiaries; and a person who acted in good faith and in a
manner he reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan
shall be deemed to have acted in a manner "not opposed to
the best interests of the corporation" as referred to in
this paragraph 28. For the purpose of this paragraph 28,
unless the board of directors of the corporation shall
determine otherwise, any director or officer of the
corporation who shall serve as an officer or director of any
Other Enterprise of which the corporation, directly or
indirectly, is a stockholder or creditor, or in which the
corporation is in any way interested, shall be presumed to
be serving as such director or officer at the request of the
corporation. In all other instances where any person shall
serve as a director or officer of an Other Enterprise, if it
is not otherwise established that such person is or was
serving as such director or officer at the request of the
corporation, the board of directors of the corporation shall
determine whether such person is or was serving at the
request of the corporation, and it shall not be necessary to
show any actual or prior request for such service, which
determination shall be final and binding on the corporation
and the person seeking indemnification.
(k) Severability. If any provision of this
paragraph 28 or the application of any such provision to any
person or circumstance is held invalid, illegal or
unenforceable for any reason whatsoever, the remaining
provisions of this paragraph 28 and the application of such
provisions to other persons or circumstances shall not be
affected thereby and to the fullest extent possible the
court finding such provision invalid, illegal or
unenforceable shall modify and construe the provision so as
to render it valid and enforceable as against all persons or
entities and to give the maximum possible protection to
persons subject to indemnification hereby within the bounds
of validity, legality and enforceability. Without limiting
the generality of the foregoing, if any officer or director
of the corporation or any person who is or was serving at
the request of the corporation as a director or officer of
any Other Enterprise, is entitled under any provision of
this paragraph 28, to indemnification by the corporation for
some or a portion of the judgments, amounts paid in
settlement, attorneys' fees, ERISA excise taxes or
penalties, fines or other expenses actually and reasonably
incurred by any such person in connection with any
threatened, pending or completed action, suit or proceeding
(including without limitation, the investigation, defense,
settlement or appeal of such action, suit or proceeding),
whether civil, criminal, or administrative, investigative or
appellate, but not, however, for all of the total amount
thereof, the corporation shall nevertheless indemnify such
person for the portion thereof to which such person is
entitled.
29. Action without a Meeting. Unless otherwise
restricted by the certificate of incorporation or these
bylaws, any action required or permitted to be taken at any
meeting of the board of directors or any committee thereof
may be taken without a meeting if written consent thereto is
signed by all members of the board of directors or of such
committee, as the case may be, and such written consent is
filed with the minutes of proceedings of the board or
committee.
Officers
30. (a) Officers - Who Shall Constitute. The
officers of the corporation shall be a chairman of the
board, a president, one or more vice presidents, a
secretary, a treasurer, one or more assistant secretaries
and one or more assistant treasurers. The board shall elect
a president and a secretary at its first meeting after each
annual meeting of the stockholders. The board then, or from
time to time, may also elect one or more of the other
prescribed officers as it may deem advisable, but need not
elect any officers other than a president and a secretary.
The board may, if it desires, elect or appoint additional
officers and may further identify or describe any one or
more of the officers of the corporation.
Officers of the corporation need not be members of
the board of directors. Any two (2) or more offices may be
held by the same person.
An officer shall be deemed qualified when he enters
upon the duties of the office to which he has been elected
or appointed and furnishes any bond required by the board;
but the board may also require his written acceptance and
promise faithfully to discharge the duties of such office.
(b) Term of Office. Each officer of the
corporation shall hold his office at the pleasure of the
board of directors or for such other period as the board may
specify at the time of his election or appointment, or until
his death, resignation or removal by the board, whichever
first occurs. In any event, each officer of the corporation
who is not reelected or reappointed at the annual election
of officers by the board next succeeding his election or
appointment shall be deemed to have been removed by the
board, unless the board provides otherwise at the time of
his election or appointment.
(c) Other Agents. The board from time to time may
also appoint such other agents for the corporation as it
shall deem necessary or advisable, each of whom shall serve
at the pleasure of the board or for such period as the board
may specify, and shall exercise such powers, have such
titles and perform such duties as shall be determined from
time to time by the board or by an officer empowered by the
board to make such determinations.
31. The Chairman of the Board. If a chairman of
the board be elected, he shall preside at all meetings of
the stockholders and directors at which he may be present
and shall have such other duties, powers and authority as
may be prescribed elsewhere in these bylaws. The board of
directors may delegate such other authority and assign such
additional duties to the chairman of the board, other than
those conferred by law exclusively upon the president, as it
may from time to time determine, and, to the extent
permissible by law, the board may designate the chairman of
the board as the chief executive officer of the corporation
with all of the powers otherwise conferred upon the
president of the corporation under paragraph 32 of these
bylaws, or it may, from time to time, divide the
responsibilities, duties and authority for the general
control and management of the corporation's business and
affairs between the chairman of the board and the president.
32. The President. Unless the board otherwise
provides, the president shall be the chief executive officer
of the corporation with such general executive powers and
duties of supervision and management as are usually vested
in the office of the chief executive officer of a
corporation, and he shall carry into effect all directions
and resolutions of the board. The president, in the absence
of the chairman of the board or if there be no chairman of
the board, shall preside at all meetings of the stockholders
and directors.
The president may execute all bonds, notes,
debentures, mortgages and other instruments for and in the
name of the corporation, may cause the corporate seal to be
affixed thereto, and may execute all other instruments for
and in the name of the corporation.
Unless the board otherwise provides, the president,
or any person designated in writing by him, shall have full
power and authority on behalf of this corporation (i) to
attend and to vote or take action at any meeting of the
holders of securities of corporations in which this
corporation may hold securities, and at such meetings shall
possess and may exercise any and all rights and powers
incident to being a holder of such securities, and (ii) to
execute and deliver waivers of notice and proxies for and in
the name of the corporation with respect to any securities
held by the corporation.
He shall, unless the board otherwise provides, be
ex officio a member of all standing committees.
He shall have such other or further duties and
authority as may be prescribed elsewhere in these bylaws or
from time to time by the board of directors.
If a chairman of the board be elected or appointed
and designated as chief executive officer of the
corporation, as provided in paragraph 31, of these bylaws,
the president shall perform such duties as may be
specifically delegated to him by the board of directors or
are conferred by law exclusively upon him, and in the
absence, disability, or inability or refusal to act of the
chairman of the board, the president shall perform the
duties and exercise the powers of the chairman of the board.
33. Vice Presidents. In the absence of the
president or in the event of his disability, or inability or
refusal to act, any vice president may perform the duties
and exercise the powers of the president until the board
otherwise provides. Vice presidents shall perform such
other duties as the board may from time to time prescribe.
34. Secretary and Assistant Secretaries. The
secretary shall attend all sessions of the board and all
meetings of the stockholders, shall prepare minutes of all
proceedings at such meetings and shall preserve them in a
minute book of the corporation. He shall perform similar
duties for the executive committee and other standing
committees when requested by the board or any such
committee.
The secretary shall see that all books, records,
lists and information, or duplicates, required to be
maintained in Delaware, or elsewhere, are so maintained.
The secretary shall keep in safe custody the seal
of the corporation, and shall have authority to affix the
seal to any instrument requiring a corporate seal and, when
so affixed, he shall attest the seal by his signature. The
board of directors may give general authority to any other
officer to affix the seal of the corporation and to attest
the affixing by his signature.
The secretary shall have the general duties,
responsibilities and authorities of a secretary of a
corporation and shall perform such other duties and have
such other responsibility and authority as may be prescribed
elsewhere in these bylaws or from time to time by the board
of directors or the chief executive officer of the
corporation, under whose direct supervision he shall be.
In the absence of the secretary or in the event of
his disability, or inability or refusal to act, any
assistant secretary may perform the duties and exercise the
powers of the secretary until the board otherwise provides.
Assistant secretaries shall perform such other duties as the
board of directors may from time to time prescribe.
35. The Treasurer and Assistant Treasurers. The
treasurer shall have responsibility for the safekeeping of
the funds and securities of the corporation, shall keep or
cause to be kept full and accurate accounts of receipts and
disbursements in books belonging to the corporation and
shall keep, or cause to be kept, all other books of account
and accounting records of the corporation. He shall deposit
or cause to be deposited all moneys and other valuable
effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of
directors or by any officer of the corporation to whom such
authority has been granted by the board.
He shall disburse, or permit to be disbursed, the
funds of the corporation as may be ordered, or authorized
generally, by the board, and shall render to the chief
executive officer of the corporation and the directors
whenever they may require it, an account of all his
transactions as treasurer and of those under his
jurisdiction, and of the financial condition of the
corporation.
He shall perform such other duties and shall have
such other responsibility and authority as may be prescribed
elsewhere in these bylaws or from time to time by the board
of directors.
He shall have the general duties, powers and
responsibility of a treasurer of a corporation and shall,
unless otherwise provided by the board, be the chief
financial and accounting officer of the corporation.
If required by the board, he shall give the
corporation a bond in a sum and with one or more sureties
satisfactory to the board, for the faithful performance of
the duties of his office and for the restoration to the
corporation, in the case of his death, resignation,
retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his
possession or under his control which belong to the
corporation.
In the absence of the treasurer or in the event of
his disability, or inability or refusal to act, any
assistant treasurer may perform the duties and exercise the
powers of the treasurer. Assistant treasurers shall perform
such other duties and have such other authority as the board
of directors may from time to time prescribe.
36. Duties of Officers May be Delegated. If any
officer of the corporation be absent or unable to act, or
for any other reason that the board may deem sufficient, the
board may delegate, from the time being, some or all of the
functions, duties, powers and responsibilities of any
officer to any other officer, or to any other agent or
employee of the corporation or other responsible person,
provided a majority of the whole board concurs.
37. Removal. Any officer or agent elected or
appointed by the board of directors, and any employee, may
be removed or discharged by the board whenever in its
judgment the best interests of the corporation would be
served thereby, but such removal or discharge shall be
without prejudice to the contract rights, if any, of the
person so removed or discharged.
38. Salaries and Compensation. Salaries and
compensation of all elected officers of the corporation
shall be fixed, increased or decreased by the board of
directors, but this power, except as to the salary or
compensation of the chairman of the board and the president,
may, unless prohibited by law, be delegated by the board to
the chairman of the board or the president, or may be
delegated to a committee. Salaries and compensation of all
appointed officers, agents and employees of the corporation
may be fixed, increased or decreased by the board of
directors, but until action is taken with respect thereto by
the board of directors, the same may be fixed, increased or
decreased by the president or such other officer or officers
as may be empowered by the board of directors to do so.
39. Delegation of Authority to Hire, Discharge and
Designate Duties. The board from time to time may delegate
to the chairman of the board, the president or other officer
or executive employee of the corporation, authority to hire,
discharge and fix and modify the duties, salary or other
compensation of employees of the corporation under their
jurisdiction, and the board may delegate to such officer or
executive employee similar authority with respect to
obtaining and retaining for the corporation the services of
attorneys, accountants and other experts.
Stock
40. Certificates for Shares of Stock. Certificates
for shares of stock shall be issued in numerical order, and
each stockholder shall be entitled to a certificate signed
by, or in the name of the corporation by, the chairman of
the board or the president or a vice president, and by the
treasurer or an assistant treasurer or the secretary or an
assistant secretary, certifying the number of shares owned
by him. Any of or all the signatures on such certificate
may be a facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has
been placed upon a certificate shall have ceased to be such
officer, transfer agent or registrar before such certificate
is issued, such certificate may nevertheless be issued by
the corporation with the same effect as if such officer,
transfer agent or registrar who signed such certificate, or
whose facsimile signature shall have been used thereon, had
not ceased to be such officer, transfer agent or registrar
of the corporation.
41. Transfers of Stock. Transfers of stock shall
be made only upon the stock transfer books of the
corporation, kept at the office of the corporation or of the
transfer agent designated to transfer the class of stock,
and before a new certificate is issued the old certificate
shall be surrendered for cancellation. Until and unless the
board appoints some other person, firm or corporation as its
transfer agent (and upon the revocation of any such
appointment, thereafter until a new appointment is similarly
made) the secretary of the corporation shall be the transfer
agent of the corporation without the necessity of any formal
action of the board, and the secretary, or any person
designated by him, shall perform all of the duties thereof.
42. Registered Stockholders. Only registered
stockholders shall be entitled to be treated by the
corporation as the holders and owners in fact of the shares
standing in their respective names, and the corporation
shall not be bound to recognize any equitable or other claim
to or interest in such shares on the part of any other
person, whether or not it shall have express or other notice
thereof, except as expressly provided by applicable federal
law or by the laws of Delaware.
43. Lost Certificates. The board of directors may
direct that a new certificate or certificates 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 or certificates to be
lost, stolen or destroyed. When authorizing such issue of a
replacement 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 give the corporation and its
transfer agents and registrars, if any, a bond in such sum
as it may direct to indemnify it against any claim that may
be made against it with respect to the certificate or
certificates alleged to have been lost, stolen or destroyed
or with respect to the issuance of such new certificate or
certificates.
44. Regulations. The board of directors shall have
power and authority to make all such rules and regulations
as it may deem expedient concerning the issue, transfer,
conversion and registration of certificates for shares of
stock of the corporation, not inconsistent with the laws of
Delaware, the certificate of incorporation of the
corporation and these bylaws.
45. Fixing 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 to express consent to corporate
action in writing without a meeting, if such action is
authorized, 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
(60) days nor less than ten (10) days before the date of
such meeting, nor more than sixty (60) days prior to any
other action. A determination of stockholders of record
entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting;
provided, however, that the board of directors may fix a new
record date for the adjourned meeting.
Dividends and Finance
46. Dividends. Dividends upon the outstanding
shares of stock of the corporation, subject to the
provisions of the certificate of incorporation and of any
applicable law and of these bylaws, may be declared by the
board of directors at any meeting. Subject to such
provisions, dividends may be paid in cash, in property or in
shares of stock of the corporation.
47. Creation of Reserves. The directors may set
apart out of any of the funds of the corporation available
for dividends a reserve or reserves for any proper purpose
or may abolish any such reserve in the manner in which it
was created.
48. Depositories. The moneys of the corporation
shall be deposited in the name of the corporation in such
bank or banks or other depositories as the board of
directors shall designate, and shall be drawn out only by
check signed by persons designated by resolution adopted by
the board of directors, except that the board of directors
may delegate said powers in the manner hereinafter provided
in this paragraph 48. The board of directors may by
resolution authorize an officer or officers of the
corporation to designate any bank or banks or other
depositories in which moneys of the corporation may be
deposited, and to designate the persons who may sign checks
drawn on any particular account or accounts of the
corporation, whether created by direct designation of the
board of directors or by an authorized officer or officers
as aforesaid.
49. Fiscal Year. The board of directors shall have
power to fix and from time to time change the fiscal year of
the corporation. In the absence of action by the board of
directors, the fiscal year of the corporation shall end each
year on the date which the corporation treated as the close
of its first fiscal year, until such time, if any, as the
fiscal year shall be changed by the board of directors.
50. Directors, Annual Statement. The board of
directors may present at each annual meeting of the
stockholders, and when called for by vote of the
stockholders shall present to any annual or special meeting
of the stockholders, a full and clear statement of the
business and condition of the corporation.
Books and Records
51. Books, Accounts and Records. The books,
accounts and records of the corporation, except as may be
otherwise required by the laws of the State of Delaware, may
be kept outside of the State of Delaware, at such place or
places as the board of directors may from time to time
determine. The board of directors shall determine whether,
to what extent and the conditions upon which the books,
accounts and records of the corporation, or any of them,
shall be open to the inspection of the stockholders, and no
stockholder shall have any right to inspect any book,
account or record of the corporation, except as conferred by
law or by resolution of the stockholders or directors.
Miscellaneous
52. Waiver of Notice. Whenever any notice is
required to be given under the provisions of the statutes of
Delaware or of the certificate of incorporation or of these
bylaws, a waiver thereof in writing, signed by the person or
persons entitled to said notice, whether before or after the
time stated therein, shall be deemed equivalent to notice.
Attendance of a person at a meeting shall constitute a
waiver of notice of such meeting, except when the person
attends a meeting for the express purpose of objecting, at
the beginning of the meeting, to the transaction of any
business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the
stockholders, directors or members of a committee of
directors need be specified in any written waiver of notice
unless so required by the certificate of incorporation or
these bylaws.
53. Contracts. The board of directors may
authorize any officer or officers, or agent or agents, to
enter into any contract or execute and deliver any
instrument in the name of and on behalf of the corporation,
and such authority may be general or confined to specific
instances.
54. Amendments. These bylaws may be altered,
amended or repealed, or new bylaws may be adopted, in the
manner provided in the certificate of incorporation.
55. Business Combinations. The corporation shall
not be governed by the provisions of Section 203 of the
Delaware General Corporation Law.
