Exhibit 3.2
AUTOMATIC DATA PROCESSING, INC.
BY-LAWS
As Amended and Restated on March 24, 1997
(further amended on May 15, 2000)
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AUTOMATIC DATA PROCESSING, INC.
BY-LAWS
TABLE OF CONTENTS
SECTION PAGE
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ARTICLE I STOCKHOLDERS 1
Section 1.01. Annual Meetings 1
Section 1.02. Special Meetings 1
Section 1.03. Notice of Meetings; Waiver 1
Section 1.04. Quorum 2
Section 1.05. Voting 2
Section 1.06. Voting by Ballot 2
Section 1.07. Adjournment 2
Section 1.08. Proxies 2
Section 1.09. Organization; Procedure 3
Section 1.10. Inspectors of Elections 3
Section 1.11. Opening and Closing of Polls 4
Section 1.12. Consent of Stockholders in Lieu of Meeting 4
ARTICLE II BOARD OF DIRECTORS 4
Section 2.01. General Powers 4
Section 2.02. Number and Term of Office 4
Section 2.03. Election of Directors 5
Section 2.04. Annual and Regular Meetings 5
Section 2.05. Special Meetings; Notice 5
Section 2.06. Quorum; Voting 5
Section 2.07. Adjournment 5
Section 2.08. Action Without a Meeting 6
Section 2.09. Regulations; Manner of Acting 6
Section 2.10. Action by Telephonic Communications 6
Section 2.11. Resignations 6
Section 2.12. Removal of Directors 6
Section 2.13. Vacancies and Newly Created Directorships 6
Section 2.14. Compensation 7
Section 2.15. Reliance on Accounts and Reports, etc. 7
Section 2.16. Honorary Directors 7
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ARTICLE III EXECUTIVE COMMITTEE, AUDIT COMMITTEE,
COMPENSATION COMMITTEE AND OTHER COMMITTEES 7
Section 3.01. How Constituted 7
Section 3.02. Powers; Duties and Responsibilities 8
Section 3.03. Proceedings 10
Section 3.04. Quorum and Manner of Acting 10
Section 3.05. Action by Telephonic Communications 10
Section 3.06. Absent or Disqualified Members 10
Section 3.07. Resignations 10
Section 3.08. Removal 11
Section 3.09. Vacancies 11
ARTICLE IV OFFICERS 11
Section 4.01. Number 11
Section 4.02. Election 11
Section 4.03. Salaries 11
Section 4.04. Removal and Resignation; Vacancies 11
Section 4.05. Authority and Duties of Officers 12
Section 4.06. Chairman 12
Section 4.07. President 12
Section 4.08. Vice Presidents 12
Section 4.09. Secretary 12
Section 4.10. Treasurer 13
Section 4.11. Assistant Secretary and Assistant Treasurers 13
Section 4.12. Security 13
ARTICLE V CAPITAL STOCK 13
Section 5.01. Certificates of Stock, Uncertificated Shares 13
Section 5.02. Signatures; Facsimile 14
Section 5.03. Lost, Stolen or Destroyed Certificates 14
Section 5.04. Transfer of Stock 14
Section 5.05. Record Date 14
Section 5.06. Registered Stockholders 15
Section 5.07. Transfer Agent and Registrar 15
ARTICLE VI INDEMNIFICATION 15
Section 6.01. Nature of Indemnity 15
Section 6.02. Successful Defense 16
Section 6.03. Determination that Indemnification is Proper 16
Section 6.04. Advance Payment of Expenses 16
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Section 6.05. Procedure for Indemnification of Directors & Officers 17
Section 6.06. Survival; Preservation of Other Rights 17
Section 6.07. Insurance 18
Section 6.08. Severability 18
ARTICLE VII GENERAL PROVISIONS 18
Section 7.01. Dividends 18
Section 7.02. Reserves 19
Section 7.03. Execution of Instruments 19
Section 7.04. Corporate Indebtedness 19
Section 7.05. Fiscal Year 19
Section 7.06. Seal 19
Section 7.07. Books and Records; Inspection 19
ARTICLE VIII AMENDMENT OF BY-LAWS 20
Section 8.01. Amendment 20
ARTICLE IX CONSTRUCTION 20
Section 9.01. Construction 20
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AUTOMATIC DATA PROCESSING, INC.
BY-LAWS
As Amended and Restated on March 24, 1997
(further amended on May 15, 2000)
ARTICLE I
STOCKHOLDERS
Section 1.01. Annual Meetings. The annual meeting of the stockholders of
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the Corporation for the election of directors and for the transaction of such
other business as properly may come before such meeting shall be held at such
place, either within or without the State of Delaware, and at such date and
hour, as may be fixed from time to time by resolution of the Board of Directors
and set forth in the notice or waiver of notice of the meeting. [Sections
211(a), (b).]1
Section 1.02. Special Meetings. Special meetings of the stockholders may be
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called at any time by the Chief Executive Officer or the Secretary or by the
Board of Directors. A special meeting shall be called by the Chief Executive
Officer or by the Secretary immediately upon receipt of a written request
therefor by stockholders holding in the aggregate not less than one-third in
number of the outstanding shares of the Corporation at the time entitled to vote
at any meeting of the stockholders. Such special meetings of the stockholders
shall be held at such places, within or without the State of Delaware, as shall
be specified in the respective notices or waivers of notice thereof. [Section
211(d).]
Section 1.03. Notice of Meetings; Waiver. The Secretary or any Assistant
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Secretary shall cause written notice of the place, date and hour of each meeting
of the stockholders, and, in the case of a special meeting, the purpose or
purposes for which such meeting is called, to be given personally or by mail,
not less than ten nor more than sixty days prior to the meeting, to each
stockholder of record entitled to vote at such meeting. If such notice is
mailed, it shall be deemed to have been given to a stockholder when deposited in
the United States mail, postage prepaid, directed to the stockholder at his
address as it appears on the record of stockholders of the Corporation, or, if
he or she shall have filed with the Secretary of the Corporation a written
request that notices to him or her be mailed to some other address, then
directed to him or her at such other address. Such further notice shall be given
as may be required by law.
No notice of any meeting of stockholders need be given to any stockholder
who submits a signed waiver of notice, whether before or after the meeting.
Neither the business to be transacted at, nor the purpose of, any regular or
special meeting of the stockholders need be
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[FN]
1 Citations are to the General Corporation Law of the State of Delaware as in
effect on January 1, 1996 (the "GCL"). The citations are inserted for reference
only, and do not constitute a part of the By-Laws.
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specified in a written waiver of notice. The attendance of any stockholder at a
meeting of stockholders shall constitute a waiver of notice of such meeting,
except when the stockholder attends a meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any business
on the ground that the meeting is not lawfully called or convened. [Sections
222, 229.]
Section 1.04. Quorum. Except as otherwise required by law or by the
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Certificate of Incorporation, the presence in person or by proxy of the holders
of record of a majority of the shares entitled to vote at a meeting of
stockholders shall constitute a quorum for the transaction of business at such
meeting. [Section 216.]
Section 1.05. Voting. If, pursuant to Section 5.05 of these By-Laws, a
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record date has been fixed, every holder of record of shares entitled to vote at
a meeting of stockholders shall be entitled to one vote for each share
outstanding in his or her name on the books of the Corporation at the close of
business on such record date. If no record date has been fixed, then every
holder of record of shares entitled to vote at a meeting of stockholders shall
be entitled to one vote for each share of stock standing in his or her name on
the books of the Corporation at the close of business on the day next preceding
the day on which notice of the meeting 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. Except as otherwise required by law or by the Certificate of Incorporation
or by these By-Laws, the vote of a majority of the shares represented in person
or by proxy at any meeting at which a quorum is present shall be sufficient for
the transaction of any business at such meeting. [Sections 212(a), 213, 216.]
Section 1.06. Voting by Ballot. No vote of the stockholders need be taken
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by written ballot unless demanded by the holders of at least fifteen percent
(15%) of the shares represented in person or by proxy at any meeting at which a
quorum is present or as otherwise required by law. Any vote which need not be
taken by ballot may be conducted in any manner approved by the meeting.
Section 1.07. Adjournment. If a quorum is not present at any meeting of the
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stockholders, the holders of a majority of the shares present in person or by
proxy shall have the power to adjourn any such meeting from time to time until a
quorum is present. Notice of any adjourned meeting of the stockholders of the
Corporation need not be given if the place, date and hour thereof are announced
at the meeting at which the adjournment is taken, provided, however, that if the
adjournment is for more than thirty days, or if after the adjournment a new
record date for the adjourned meeting is fixed pursuant to Section 5.05 of these
By-Laws, a notice of the adjourned meeting, conforming to the requirements of
Section 1.03 of these By-Laws, shall be given to each stockholder of record
entitled to vote at such meeting. At any adjourned meeting at which a quorum is
present, any business may be transacted that might have been transacted on the
original date of the meeting. [Section 222(c).]
Section 1.08. Proxies. Any stockholder entitled to vote at any meeting of
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the stockholders or to express consent to or dissent from corporate action in
writing without a meeting may authorize another person or persons to vote at any
such meeting and express such
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consent or dissent for him or her by proxy. Every proxy shall be revocable at
the pleasure of the stockholder executing it, except in those cases where
applicable law provides that a proxy shall be irrevocable. 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 filing
another duly executed proxy bearing a later date with the Secretary. [Section
212.]
Section 1.09. Organization; Procedure. At every meeting of stockholders the
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presiding officer shall be the Chairman or, in the event of his or her absence
or should the Chairman in his or her discretion determine not to preside, in the
following order of availability, the Chief Executive Officer, the President, or
a Vice President, and in the case more than one Vice President shall be present,
that Vice President designated by the Board of Directors (or in the absence of
any such designation, the most senior Vice President, based on title). In case
none of the foregoing officers designated to be the presiding officer shall be
present, a presiding officer shall be chosen by the vote of a majority of the
shares represented in person or by proxy and entitled to vote at the meeting.
The Secretary, or in the event of his or her absence or disability, the
Assistant Secretary, if any, or if there be no Assistant Secretary, in the
absence of the Secretary, an appointee of the presiding officer, shall act as
secretary of the meeting. The order of business and all other matters of
procedure at every meeting of stockholders may be determined by such presiding
officer.
Section 1.10. Inspectors of Elections. Preceding any meeting of the
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stockholders, the Board of Directors shall appoint one or more persons to act as
Inspectors of Elections, and may designate one or more alternate inspectors. In
the event no inspector or alternate is able to act, the person presiding at the
meeting shall appoint one or more inspectors to act at the meeting. Each
inspector, before entering upon the discharge of the duties of an inspector,
shall take and sign an oath faithfully to execute the duties of inspector with
strict impartiality and according to the best of his or her ability. The
inspector shall:
(a) ascertain the number of shares outstanding and the voting
power of each;
(b) determine the shares represented at a meeting and the
validity of proxies and ballots;
(c) count all votes and ballots;
(d) determine and retain for a reasonable period a record of
the disposition of any challenge made to any determination by the
inspectors; and
(e) certify his or her determination of the number of shares
represented at the meeting, and his or her count of all votes and
ballots.
The inspector may appoint or retain other persons or entities to assist in the
performance of the duties of inspector. [Sections 231(a), (b).]
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Section 1.11. Opening and Closing of Polls. The date and time for the
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opening and the closing of the polls for each matter to be voted upon at a
stockholder meeting shall be announced at the meeting. The inspector of the
election shall be prohibited from accepting any ballots, proxies or votes or any
revocations thereof or changes thereto after the closing of the polls, unless
the Court of Chancery upon application by a stockholder shall determine
otherwise. [Section 231(c).]
Section 1.12. Consent of Stockholders in Lieu of Meeting. To the fullest
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extent permitted by law, whenever the vote of stockholders at a meeting thereof
is required or permitted to be taken for or in connection with any corporate
action, such action may be taken without a meeting, without prior notice and
without a vote of stockholders, if a consent or consents in writing, setting
forth the action so taken, shall be signed by the holders of outstanding stock
having not less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all shares entitled to vote
thereon were present and voted and shall be delivered to the Corporation by
delivery to its registered office in the State of Delaware, its principal place
of business, or an officer or agent of the Corporation having custody of the
book in which proceedings of meetings of stockholders are recorded.
Every written consent shall bear the date of signature of each stockholder
who signs the consent and no written consent shall be effective to take the
corporate action referred to therein unless, within sixty days of the earliest
dated consent delivered in the manner required by law to the Corporation,
written consents signed by a sufficient number of holders to take action are
delivered to the Corporation by delivery to its registered office in the State
of Delaware, its principal place of business, or an officer or agent of the
Corporation having custody of the book in which proceedings of meetings of
stockholders are recorded. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing and who, if the action had been
taken at a meeting, would have been entitled to notice of the meeting if the
record date for such meeting had been the date that written consents signed by a
sufficient number of stockholders to take the action were delivered to the
Corporation as provided in this Section 1.12. [Section 228(a), (c), (d).]
ARTICLE II
BOARD OF DIRECTORS
Section 2.01. General Powers. Except as may otherwise be provided by law,
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by the Certificate of Incorporation or by these By-Laws, the property, affairs
and business of the Corporation shall be managed by or under the direction of
the Board of Directors and the Board of Directors may exercise all the powers of
the Corporation. [Section 141(a).]
Section 2.02. Number and Term of Office. The number of directors
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constituting the entire Board of Directors shall be between 9 and 13, which
number may be modified from time to time by resolution of the Board of
Directors, but in no event shall the number of directors be
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less than three. No person shall be nominated by the Board of Directors to serve
as a director after he or she has passed his or her 72nd birthday, unless the
Executive Committee of the Board of Directors has voted (in its capacity as the
nominating committee), on an annual basis, to waive, or continue to waive, the
mandatory retirement age of such person as a director. Each director (whenever
elected) shall hold office until his or her successor has been duly elected and
qualified, or until his or her earlier death, resignation or removal. [Section
141(b).]
Section 2.03. Election of Directors. Except as otherwise provided in
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Sections 2.12 and 2.13 of these By-Laws, the directors shall be elected at each
annual meeting of the stockholders. If the annual meeting for the election of
directors is not held on the date designated therefor, the directors shall cause
the meeting to be held as soon thereafter as convenient. At each meeting of the
stockholders for the election of directors, provided a quorum is present, the
directors shall be elected by a plurality of the votes validly cast in such
election. [Sections 211(b), (c), 216.]
Section 2.04. Annual and Regular Meetings. The annual meeting of the Board
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of Directors for the purpose of electing officers and for the transaction of
such other business as may come before the meeting shall be held as soon as
possible following adjournment of the annual meeting of the stockholders at the
place of such annual meeting of the stockholders. Notice of such annual meeting
of the Board of Directors need not be given. The Board of Directors from time to
time may by resolution provide for the holding of regular meetings and fix the
place (which may be within or without the State of Delaware) and the date and
hour or such meetings. Notice of regular meetings need not be given. [Section
141(g).]
Section 2.05. Special Meetings; Notice. Special meetings of the Board of
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Directors may be called by the Chairman, the Chief Executive Officer, the
Secretary or an Assistant Secretary, if any, and, on the written request of any
two directors, the Secretary or an Assistant Secretary shall call such meeting.
Special meetings shall be held at such place (within or without the State of
Delaware), date and hour as may be specified in the respective notices or
waivers of notice of such meetings. Special meetings of the Board of Directors
may be called on twenty-four hours' notice, if notice is given to each director
personally or by telephone or telegram, or on five days' notice, if notice is
mailed to each director, addressed to him or her at his or her usual place of
business. Notice of any special meeting need not be given to any director who
attends such meeting without protesting the lack of notice to him or her, prior
to or at the commencement of such meeting, or to any director who submits a
signed waiver of notice, whether before or after such meeting, and any business
may be transacted thereat. [Sections 141(g), 229.]
Section 2.06. Quorum; Voting. At all meetings of the Board of Directors,
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the presence of at least one-third of the total authorized number of directors,
but not less than two directors, shall constitute a quorum for the transaction
of business. Except as otherwise required by law, the Certificate of
Incorporation or these By-Laws, the vote of a majority of the directors present
at any meeting at which a quorum is present shall be the act of the Board of
Directors. [Section 141(b).]
Section 2.07. Adjournment. A majority of the directors present, whether or
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not a quorum is present, may adjourn any meeting of the Board of Directors to
another time or place. No
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notice need be given of any adjourned meeting unless the time and place of the
adjourned meeting are not announced at the time of adjournment, in which case
notice conforming to the requirements of Section 2.05 of these By-Laws shall be
given to each director.
Section 2.08. Action Without a Meeting. Any action required or permitted to
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be taken at any meeting of the Board of Directors may be taken without a meeting
if all members of the Board of Directors consent thereto in writing, and such
writing or writings are filed with the minutes of proceedings of the Board of
Directors. [Section 141(f).]
Section 2.09. Regulations; Manner of Acting. To the extent consistent with
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applicable law, the Certificate of Incorporation and these By-Laws, the Board of
Directors may adopt such rules and regulations for the conduct of meetings of
the Board of Directors and for the management of the property, affairs and
business of the Corporation as the Board of Directors may deem appropriate. The
directors shall act only as a Board, and the individual directors shall have no
power as such.
Section 2.10. Action by Telephonic Communications. Except as otherwise
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determined by the Board of Directors, members of the Board of Directors may
participate in a meeting of the Board of Directors 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 provision shall constitute presence in person at such meeting.
[Section 141(i).]
Section 2.11. Resignations. Any director may resign at any time by
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delivering a written notice of resignation, signed by such director, to the
Chairman or the Chief Executive Officer. Unless otherwise specified therein,
such resignation shall take effect upon delivery. [Section 141(b).]
Section 2.12. Removal of Directors. Any director may be removed at any
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time, either for or without cause, upon the affirmative vote of the holders of a
majority of the outstanding shares of stock of the Corporation entitled to vote
for the election of such director. Any vacancy in the Board of Directors caused
by any such removal may be filled at such meeting by the stockholders entitled
to vote for the election of the director so removed. If such stockholders do not
fill such vacancy at such meeting (or in the written instrument effecting such
removal, if such removal was effected by consent without a meeting), such
vacancy may be filled in the manner provided in Section 2.13 of these By-Laws.
[Section 141(k).]
Section 2.13. Vacancies and Newly Created Directorships. If any vacancies
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shall occur in the Board of Directors, by reason of death, resignation, removal
or otherwise, or if the authorized number of directors shall be increased, the
directors then in office shall continue to act, and such vacancies and newly
created directorships may be filled by a majority of the directors then in
office, although less than a quorum. A director elected to fill a vacancy or a
newly created directorship shall hold office until his or her successor has been
elected and qualified or until his or her earlier death, resignation or removal.
Any such vacancy or newly created directorship may also be filled at any time by
vote of the stockholders. [Section 223.]
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Section 2.14. Compensation. Each director, in consideration of his or her
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service as such, shall be entitled to receive from the Corporation such amount
per annum or such fees for attendance at directors' meetings, or both, as the
Board of Directors may from time to time determine, together with reimbursement
for the reasonable out-of-pocket expenses, if any, incurred by such director in
connection with the performance of his or her duties. Each director who shall
serve as a member of any Committee designated by the Board of Directors in
consideration of serving as such shall be entitled to such additional amount per
annum or such fees for attendance at committee meetings, or both, as the Board
of Directors may from time to time determine, together with reimbursement for
the reasonable out-of-pocket expenses, if any, incurred by such director in the
performance of his or her duties. Nothing contained in this Section 2.14 shall
preclude any director from serving the Corporation or its subsidiaries in any
other capacity and receiving proper compensation. [Section 141(h).]
Section 2.15. Reliance on Accounts and Reports, etc. A director, or a
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member of any Committee designated by the Board of Directors shall, in the
performance of his or her duties, be fully protected in relying in good faith
upon the records of the Corporation and upon information, opinions, reports or
statements presented to the Corporation by any of the Corporation's officers or
employees, or Committees designated by the Board of Directors, or by any other
person as to the matters the member reasonably believes are within such other
person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Corporation. [Section 141(e).]
Section 2.16. Honorary Directors. The Board of Directors may, by vote at a
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regularly held meeting, appoint at its discretion individuals as Honorary
Directors to serve for such period of time and with such compensation as shall
be fixed by the Board of Directors. Individuals appointed as Honorary Directors
shall have the right to attend regularly scheduled Board of Directors meetings
but shall not have the right to cast a vote.
ARTICLE III
EXECUTIVE COMMITTEE, AUDIT COMMITTEE,
COMPENSATION COMMITTEE AND OTHER COMMITTEES
Section 3.01. How Constituted. The Board of Directors shall have an
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Executive Committee, an Audit Committee and a Compensation Committee, each such
Committee to consist of such number of directors as from time to time may be
fixed by the Board of Directors in accordance with this Section 3.01. The
Executive Committee shall consist of three or more directors. The Audit
Committee and Compensation Committee shall each consist of three or more outside
directors, with each Audit Committee member having such level of independence as
shall be deemed necessary by the Board of Directors. The Board of Directors may
designate one or more other Committees, each of which shall consist of such
number of directors as from time to time may be fixed by the Board of Directors.
The Board of Directors may designate one or more directors as alternate members
of any Committee, who may replace any absent or
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disqualified member or members at any meeting of such Committee. Thereafter,
members (and alternate members, if any) of each Committee may be designated at
the annual meeting of the Board of Directors. Any Committee, other than the
Executive Committee, Audit Committee and Compensation Committee, may be
abolished or re-designated from time to time by the Board of Directors. Each
member (and each alternate member) of any Committee (whether designated at an
annual meeting of the Board of Directors or to fill a vacancy or otherwise)
shall hold office until his or her successor shall have been designated or until
he or she shall cease to be a director, or until his or her earlier death,
resignation or removal. [Section 141(c).]
Section 3.02. Powers; Duties and Responsibilities. During the intervals
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between the meetings of the Board of Directors, the Executive Committee, except
as otherwise provided in this Section 3.02, shall have and may exercise all the
powers and authority of the Board of Directors in the management of the
property, affairs and business of the Corporation, including the power to
declare dividends and to authorize the issuance of stock. The Executive
Committee shall, in addition, act as the corporate governance/nominating
committee to advise the Board of Directors (as a whole) on corporate governance
matters, to develop policies on the size and composition of the Board, to review
possible candidates for Board membership, to perform Board evaluations, and to
recommend a slate of nominees to the Board with respect to nominations for the
Board. The Executive Committee may not recommend any person to serve as a
director after he or she has passed his or her 72nd birthday, unless the
Committee has voted (in its capacity as the nominating committee), on an annual
basis, to waive, or continue to waive, the mandatory retirement of such person
as a director of the Corporation.
The Audit Committee shall have the power and authority of the Board of
Directors to perform the following duties:
(a) Review the recommendation of senior management of the
Corporation as to the selection,retention or discharge of the
independent certified public accountants to serve as the independent
auditors of the Corporation for each fiscal year of the Corporation
and report to the full Board of Directors the agreement or
disagreement by the Committee with such recommendation;
(b) Review with the independent auditors and the Corporate Audit
Department of the Corporation the scope of the separate audits to be
performed by such auditors and such Department for each fiscal year of
the Corporation and report to the full Board of Directors the
agreement or disagreement by the Committee with the scope of each
audit;
(c) Review with the independent auditors and senior management of
the Corporation significant proposed changes in the accounting
policies of the Corporation;
(d) Review with the independent auditors and senior management of
the Corporation the annual financial statements of the Corporation and
report on the same to the full Board of Directors;
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(e) Review with the independent auditors, senior management and
Corporate Audit Department of the Corporation the adequacy of the
financial and administrative controls, procedures and practices of
the Corporation;
(f) Review the fees of the independent auditors of the Corporation
and the scope of management advisory services to be performed by such
auditors;
(g) Perform such other duties as may otherwise be related to the
foregoing duties or as may be established from time to time by the
Board of Directors.
The Compensation Committee shall have the power and authority of the Board
of Directors to perform the following duties:
(a) Develop guidelines and review the compensation and performance
of officers of the Corporation and review and approve the compensation
for the Chief Executive Officer on behalf of the Board of Directors;
(b) Serve as the Option Committee for the Board of Directors with
the power and authority to establish criteria for the granting of
options to the officers and other employees of the Corporation and to
review and approve the granting of options in accordance with such
criteria;
(c) Develop plans for managerial succession for the Corporation;
(d) Review major organizational and staffing matters; and
(e) Perform such other duties as may otherwise be related to the
foregoing duties or as may be established from time to time by the
Board of Directors.
Each Committee, other than the Executive Committee, Audit Committee and
Compensation Committee, except as otherwise provided in this section, shall have
and may exercise such powers of the Board of Directors as may be provided by
resolution or resolutions of the Board of Directors. Neither the Executive
Committee, the Audit Committee or the Compensation Committee nor any such other
Committee shall have the power or authority:
(a) to amend the Certificate of Incorporation (except that a
Committee may, to the extent authorized in the resolution or
resolutions providing for the issuance of shares of stock adopted by
the Board of Directors as provided in Section 151(a) of the General
Corporation Law, fix the designations and any of the preferences or
rights of such shares relating to dividends, redemption, dissolution,
any distribution of assets of the Corporation or the conversion into,
or the exchange of such shares for, shares of any other class or
classes or any other series of the same or any other class or classes
of stock of the Corporation or fix the number of shares of any series
of stock or authorize the increase or decrease of the shares of any
series);
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(b) to adopt an agreement of merger or consolidation;
(c) to recommend to the stockholders the sale, lease or exchange
of all or substantially all of the Corporation's property and assets;
(d) to recommend to the stockholders a dissolution of the
Corporation or a revocation of dissolution; or
(e) to amend the By-Laws of the Corporation. [Section 141(c).]
Section 3.03. Proceedings. The Chairman of each Committee shall be
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designated by the Board of Directors. Each Committee may fix its own rules of
procedure and may meet at such place (within or without the State of Delaware),
at such time and upon such notice, if any, as it shall determine from time to
time or as may be required by the Board of Directors. Each Committee shall keep
minutes of its proceedings and shall report such proceedings to the Board of
Directors at the meeting of the Board of Directors next following any such
proceedings.
Section 3.04. Quorum and Manner of Acting. Except as may be otherwise
-----------------------------
provided in the resolution creating such Committee, at all meetings of any
Committee the presence of members (or alternate members) constituting a majority
of the total authorized membership of such Committee shall constitute a quorum
for the transaction of business. The act of the majority of the members present
at any meeting at which a quorum is present shall be the act of such Committee.
Any action required or permitted to be taken at any meeting of any such
Committee may be taken without a meeting, if all members of such Committee shall
consent to such action in writing and such writing or writings are filed with
the minutes of the proceedings of the Committee. The members of any such
Committee shall act only as a Committee, and the individual members of such
Committee shall have no power as such. [Section 141(c), (f).]
Section 3.05. Action by Telephonic Communications. Except as otherwise
-------------------------------------
provided by the applicable Committee or by the Board of Directors, members of
any Committee may participate in a meeting of such 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 pursuant to this provision shall constitute presence in person at such
meeting. [Section 141(i).]
Section 3.06. Absent or Disqualified Members. In the absence or
----------------------------------
disqualification of a member of any Committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he, she
or they constitute a quorum, may unanimously appoint another qualified member of
the Board of Directors to act at the meeting in the place of any such absent or
disqualified member. [Section 141(c).]
Section 3.07. Resignations. Any member (and any alternate member) of any
------------
Committee may resign at any time by delivering a written notice of resignation,
signed by such member, to the Chairman or the Chief Executive Officer. Unless
otherwise specified therein, such resignation shall take effect upon delivery.
10
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Section 3.08. Removal. Any member (and any alternate member) of any
-------
Committee may be removed from his or her position as a member (or alternate
member, as the case may be) of such Committee at any time, either for or without
cause, by the Board of Directors.
Section 3.09. Vacancies. If any vacancy shall occur in any Committee, by
---------
reason of disqualification, death, resignation, removal or otherwise, the
remaining members (and any alternate members) shall continue to act, and any
such vacancy may be filled by the Board of Directors.
ARTICLE IV
OFFICERS
Section 4.01. Number. The officers of the Corporation shall be a Chairman
------
of the Board, a President, a Secretary, a Treasurer and such other officers as
the Board of Directors may appoint, including one or more Vice Presidents and
one or more Assistant Secretaries and Assistant Treasurers, who shall exercise
such powers and perform such duties and have such titles as shall be determined
from time to time by the Board of Directors or as otherwise provided in the
By-Laws. The Board of Directors shall designate an officer to be the Chief
Executive Officer of the Corporation and may designate any officer to be the
Chief Operating Officer or Chief Financial Officer of the Corporation. Any
number of offices may be held by the same person unless the Certificate of
Incorporation or these By-Laws provide otherwise. [Section 142 (a) , (b).]
Section 4.02. Election. Unless otherwise determined by the Board of
--------
Directors, the officers of the Corporation shall be elected by the Board of
Directors at the annual meeting of the Board of Directors, and shall be elected
to hold office until the next succeeding annual meeting of the Board of
Directors. In the event of the failure to elect officers at such annual meeting,
officers may be elected at any regular or special meeting of the Board of
Directors. Each officer shall hold office until his or her successor has been
elected and qualified, or until his or her earlier death, resignation or
removal. [Section 142(b).]
Section 4.03. Salaries. The salaries of all officers and agents of the
--------
Corporation shall be fixed by the Board of Directors, the Chief Executive
Officer or such other persons to whom the authority to fix such salaries shall
be delegated by the Board of Directors or the Chief Executive Officer. No
officer shall be prevented from receiving a salary or other compensation by
reason of the fact that the officer is also a director of the Corporation.
Section 4.04. Removal and Resignation; Vacancies. Any officer may be
-------------------------------------
removed for or without cause at any time by the Board of Directors or by the
Chief Executive Officer. Any officer may resign at any time by delivering a
written notice of resignation, signed by such officer, to the Board of Directors
or the Chief Executive Officer. Unless otherwise specified therein, such
resignation shall take effect upon delivery. Any vacancy occurring in any office
of
11
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the Corporation by death, resignation, removal or otherwise, shall be filled
by the Board of Directors or by the Chief Executive Officer. [Section 142(b),
(e).]
Section 4.05. Authority and Duties of Officers. The officers of the
-----------------------------------
Corporation shall have such authority and shall exercise such powers and perform
such duties as may be specified in these By-Laws, except that in any event each
officer shall exercise such powers and perform such duties as may be required by
law. [Section 142(a).]
Section 4.06. Chairman. The Chairman shall preside at all meetings of the
--------
stockholders and the Board of Directors and shall exercise such powers and
perform such other duties as shall be determined from time to time by the Board
of Directors.
Section 4.07. President. The President shall have general supervision over
---------
the business of the Corporation, subject, however, to the control of the Board
of Directors, any duly authorized Committee designated by the Board of Directors
and the Chief Executive Officer (if not the President). The President may sign
and execute in the name of the Corporation deeds, mortgages, bonds, contracts
and other instruments except in cases in which the signing and execution thereof
shall be expressly delegated by the Board of Directors or by these By-Laws to
some other officer or agent of the Corporation or shall be required by statute
otherwise to be signed or executed and, in general, the President shall perform
all duties incident to the office of President of a corporation and such other
duties as may from time to time be assigned to the President by the Board of
Directors and the Chief Executive Officer (if not the President).
Section 4.08. Vice Presidents. At the request of the Chief Executive
----------------
Officer, or, in the Chief Executive Officer's absence, at the request of the
Board of Directors, the Vice Presidents shall (in such order as may be
designated by the Chief Executive Officer or the Board of Directors or, in the
absence of any such designation, the most senior Vice President based on title)
perform all of the duties of the President and, in so performing, shall have all
the powers of, and be subject to all restrictions upon, the President. Any Vice
President may sign and execute in the name of the Corporation deeds, mortgages,
bonds, contracts or other instruments, except in cases in which the signing and
execution thereof shall be expressly delegated by the Board of Directors or by
these By-Laws to some other officer or agent of the Corporation, or shall be
required by statute otherwise to be signed or executed, and each Vice President
shall perform such other duties as from time to time may be assigned to such
Vice President by the Board of Directors or by the Chief Executive Officer.
Section 4.09. Secretary. The Secretary shall attend all meetings of the
---------
stockholders and the Board of Directors and shall record all the proceedings of
such meetings in a book or books to be kept for that purpose, and shall perform
like duties for the Committees of the Board of Directors, when required. The
Secretary shall give, or cause to be given, all notices to be given in
accordance with these By-Laws or as required by law and shall perform such other
duties as may be prescribed by the Board of Directors or by the Chief Executive
Officer. The Secretary or an Assistant Secretary, if any, may attest all
instruments signed by the Chairman, the Chief Executive Officer, the President,
any Vice President or any other authorized officers of the Corporation. The
Secretary shall have charge of the stock books and ledgers of the Corporation
12
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and all the books, records and papers of the Corporation relating to its
organization and management, shall see that the reports, statements and other
documents required by statute are properly kept and filed and, in general, shall
perform all duties incident to the office of Secretary of a corporation and such
other duties as may from time to time be assigned to the Secretary by the Board
of Directors or by the Chief Executive Officer.
4.10. Treasurer. The Treasurer shall have charge and custody of, and be
---------
responsible for, all funds, securities and notes of the Corporation; receive and
give receipts for moneys due and payable to the Corporation from any sources
whatsoever; deposit all such moneys and valuable effects in the name and to the
credit of the Corporation in such depositories as may be designated by the Board
of Directors, the Chief Executive Officer, the Treasurer or by any person to
whom such power to designate is delegated by the Board of Directors, the Chief
Executive Officer or the Treasurer; against proper vouchers, cause such funds to
be disbursed by checks or drafts on the authorized depositories of the
Corporation signed in such manner as shall be determined by the Board of
Directors or the Chief Executive Officer and be responsible for the accuracy of
the amounts of all moneys so disbursed; regularly enter or cause to be entered
in books or other records maintained for the purpose full and adequate account
of all moneys received or paid for the account of the Corporation; have the
right to require from time to time reports or statements giving such information
as the Treasurer may desire with respect to any and all financial transactions
of the Corporation from the officers or agents transacting the same; render to
the Chief Executive Officer or the Board of Directors, whenever the Chief
Executive Officer or the Board of Directors shall require the Treasurer so to
do, an account of the financial condition of the Corporation and of all
financial transactions of the Corporation; exhibit at all reasonable times the
records and books of account to any of the directors upon application at the
office of the Corporation where such records and books are kept; disburse the
funds of the Corporation as ordered by the Board of Directors and the Chief
Executive Officer; and, in general, perform all duties incident to the office of
Treasurer of a corporation and such other duties as may from time to time be
assigned to the Treasurer by the Board of Directors or the Chief Executive
Officer.
Section 4.11. Assistant Secretaries and Assistant Treasurers. Assistant
------------------------------------------------
Secretaries and Assistant Treasurers shall perform such duties as shall be
assigned to them by the Secretary or by the Treasurer, respectively, or by the
Board of Directors or by the Chief Executive Officer.
Section 4.12. Security. The Board of Directors may require any officer,
--------
agent or employee of the Corporation to provide security for the faithful
performance of his or her duties, in such amount and of such character as may be
determined from time to time by the Board of Directors. [Section 142(c).]
ARTICLE V
CAPITAL STOCK
Section 5.01. Certificates of Stock; Uncertificated Shares. The shares of
---------------------------------------------
the Corporation shall be represented by certificates, provided that the Board of
Directors may provide by
13
<PAGE>
resolution or resolutions that some or all of any or all classes or series of
the stock of the Corporation shall be uncertificated shares. Any such resolution
shall not apply to shares represented by a certificate until each certificate is
surrendered to the Corporation. Notwithstanding the adoption of such a
resolution by the Board of Directors, every holder of stock in the Corporation
represented by certificates and upon request every holder of uncertificated
shares shall be entitled to have a certificate signed by, or in the name of the
Corporation, by the Chairman, the President or a Vice President, and by the
Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary,
representing the number of shares registered in certificate form. Such
certificate shall be in such form as the Board of Directors may determine, to
the extent consistent with applicable law, the Certificate of Incorporation and
these By-Laws. [Section 158.]
Section 5.02. Signatures; Facsimile. All of such signatures on the
----------------------
certificate referred to in Section 5.01 of these By-Laws may be a facsimile,
engraved or printed, to the extent permitted by law. In case any officer,
transfer agent or registrar who has signed, or whose facsimile signature has
been placed upon a certificate shall have ceased to be such officer, transfer
agent or registrar before such certificate is issued, it may be issued by the
Corporation with the same effect as if he or she were such officer, transfer
agent or registrar at the date of issue. [Section 158.]
Section 5.03. Lost, Stolen or Destroyed Certificates. The Board of
------------------------------------------
Directors may direct that a new certificate be issued in place of any
certificate theretofore issued by the Corporation alleged to have been lost,
stolen or destroyed, upon delivery to the Board of Directors of proof
satisfactory to the Board of Directors of such loss, theft or destruction. The
Board of Directors may require the owner of such lost, stolen or destroyed
certificate, or his legal representative, to advertise such loss, theft or
destruction in such manner as the Board of Directors may require and to give the
Corporation a bond sufficient to indemnify it against any claim that may be made
against it on account of the alleged loss, theft or destruction of any such
certificate or the issuance of any such new certificate. [Section 167.]
Section 5.04. Transfer of Stock. Upon surrender to the Corporation or the
-----------------
transfer agent of the Corporation of a certificate for shares, duly endorsed or
accompanied by appropriate evidence of succession, assignment or authority to
transfer, the Corporation shall issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Subject to the provisions of the Certificate of Incorporation and these By-Laws,
the Board of Directors may prescribe such additional rules and regulations as it
may deem appropriate relating to the issue, transfer and registration of shares
of the Corporation. [Section 151(f).]
Section 5.05. Record Date. In order to determine the stockholders entitled
-----------
to notice of or to vote at any meeting of stockholders or any adjournment
thereof, the Board of Directors may fix, in advance, a record date, which record
date shall not precede the date on which the resolution fixing the record date
is adopted by the Board of Directors, and which shall not be more than sixty nor
less than ten days before the date of such meeting. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to
14
<PAGE>
any adjournment of the meeting, provided, however, that the Board of Directors
may fix a new record date for the adjourned meeting.
In order that the Corporation may determine the stockholders entitled to
receive payment of any dividend or other distribution or allotment of any rights
of the stockholders 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,
and which record date shall be not more than sixty days prior to such action. If
no record date is fixed, the record date for determining stockholders for any
such purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto. [Section 213.]
Section 5.06. Registered Stockholders. Prior to due surrender of a
------------------------
certificate for registration of transfer, the Corporation may treat the
registered owner as the person exclusively entitled to receive dividends and
other distributions, to vote, to receive notice and otherwise to exercise all
the rights and powers of the owner of the shares represented by such
certificate, and the Corporation shall not be bound to recognize any equitable
or legal claim to or interest in such shares on the part of any other person,
whether or not the Corporation shall have notice of such claim or interests.
Whenever any transfer of shares shall be made for collateral security, and not
absolutely, it shall be so expressed in the entry of the transfer if, when the
certificates are presented to the Corporation for transfer or uncertificated
shares are requested to be transferred, both the transferor and transferee
request the Corporation to do so. [Section 159.]
Section 5.07. Transfer Agent and Registrar. The Board of Directors may
------------------------------
appoint one or more transfer agents and one or more registrars, and may require
all certificates representing shares to bear the signature of any such transfer
agents or registrars.
ARTICLE VI
INDEMNIFICATION
Section 6.01. Nature of Indemnity. The Corporation shall indemnify any
-------------------
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he or she
is or was or has agreed to become a director or officer of the Corporation, or
is or was serving or has agreed to serve at the request of the Corporation as a
director or officer, of another corporation, partnership, joint venture, trust
or other enterprise, or by reason of any action alleged to have been taken or
omitted in such capacity, and may indemnify any person who was or is a party or
is threatened to be made a party to such an action, suit or proceeding by reason
of the fact that he or she is or was or has agreed to become an employee or
agent of the Corporation, or is or was serving or has agreed to serve at the
request of the Corporation as an 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 him or her or on his or her behalf in
connection with such
15
<PAGE>
action, suit or proceeding and any appeal therefrom, if he or she (x) acted in
good faith and in a manner he or she reasonably believed to be in or not opposed
to the best interests of the Corporation and, in the case of any such employee
or agent, in a manner he or she reasonably believed to be not in violation of
any policies or directives of the Corporation, and (y) with respect to any
criminal action or proceeding had no reasonable cause to believe his or her
conduct was unlawful; except that in the case of an action or suit by or in the
right of the Corporation to procure a judgment in its favor (i) such
indemnification shall be limited to expenses (including attorneys' fees)
actually and reasonably incurred by such person in the defense or settlement of
such action or suit, and (ii) 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 Delaware 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 Delaware Court of Chancery or
such other court shall deem proper. The indemnification under this Section 6.01
shall apply to all directors and officers of the Corporation who sit on the
boards of directors of non-profit corporations in keeping with the Corporation's
philosophy.
The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which he or she reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his conduct
was unlawful.
Section 6.02. Successful Defense. To the extent that a director, officer,
------------------
employee or agent of the Corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in Section
6.01 of these By-Laws or in defense of any claim, issue or matter therein, he or
she shall be indemnified against expenses (including attorneys' fees) actually
and reasonably incurred by him or her in connection therewith.
Section 6.03. Determination That Indemnification Is Proper. Any
---------------------------------------------------
indemnification of a director or officer of the Corporation under Section 6.01
of these By-Laws (unless ordered by a court) shall be made by the Corporation
unless a determination is made that indemnification of the director or officer
is not proper in the circumstances because he or she has not met the applicable
standard of conduct set forth in Section 6.01 of these By-Laws. Any
indemnification of an employee or agent of the Corporation under Section 6.01 of
these By-Laws (unless ordered by a court) may be made by the Corporation upon a
determination that indemnification of the employee or agent is proper in the
circumstances because he or she has met the applicable standard of conduct set
forth in Section 6.01 of these By-Laws. Any such determination shall be made (i)
by a majority vote of the directors who are not parties to such action, suit or
proceeding, even though less than a quorum, or (ii) if there are no such
directors, or if such directors so direct, by independent legal counsel in a
written opinion, or (iii) by the stockholders.
Section 6.04. Advance Payment of Expenses. Expenses (including attorneys'
---------------------------
fees) incurred by a director or officer in defending any civil, criminal,
administrative or investigative
16
<PAGE>
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 or officer to repay such amount if
it shall ultimately be determined that he or she is not entitled to be
indemnified by the Corporation as authorized in this Article. Such expenses
(including attorneys' fees) incurred by other employees and agents may be so
paid upon such terms and conditions, if any, as the Board of Directors deems
appropriate. The Board of Directors may authorize the Corporation's counsel to
represent such director, officer, employee or agent in any action, suit or
proceeding, whether or not the Corporation is a party to such action, suit or
proceeding.
Section 6.05. Procedure for Indemnification of Directors and Officers. Any
-------------------------------------------------------
indemnification of a director or officer of the Corporation under Sections 6.01
and 6.02 of these By-Laws, or advance of costs, charges and expenses to a
director or officer under Section 6.04 of these By-Laws, shall be made promptly,
and in any event within thirty days, upon the written request of the director or
officer. If a determination by the Corporation that the director or officer is
entitled to indemnification pursuant to this Article is required, and the
Corporation fails to respond within sixty days to a written request for
indemnity, the Corporation shall be deemed to have approved such request. If the
Corporation denies a written request for indemnity or advancement of expenses,
in whole or in part, or if payment in full pursuant to such request is not made
within thirty days, the right to indemnification or advances as granted by this
Article shall be enforceable by the director or officer in any court of
competent jurisdiction. Such person's costs and expenses incurred in connection
with successfully establishing his right to indemnification, in whole or in
part, in any such action shall also be indemnified by the Corporation. It shall
be a defense to any such action (other than an action brought to enforce a claim
for the advance of costs, charges and expenses under Section 6.04 of these
By-Laws where the required undertaking, if any, has been received by or tendered
to the Corporation) that the claimant has not met the standard of conduct set
forth in Section 6.01 of these By-Laws, but the burden of proving such defense
shall be on the Corporation. Neither the failure of the Corporation (including
its Board of Directors, its independent legal counsel, and its stockholders) to
have made a determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances because he has
met the applicable standard of conduct set forth in Section 6.01 of these
By-Laws, nor the fact that there has been an actual determination by the
Corporation (including its Board of Directors, its independent legal counsel,
and its stockholders) that the claimant has not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct.
Section 6.06. Survival; Preservation of Other Rights. The foregoing
------------------------------------------
indemnification provisions shall be deemed to be a contract between the
Corporation and each director, officer, employee and agent who serves in any
such capacity at any time while these provisions as well as the relevant
provisions of the General Corporation Law are in effect and any repeal or
modification thereof shall not affect any right or obligation then existing with
respect to any state of facts then or previously existing or any action, suit or
proceeding previously or thereafter brought or threatened based in whole or in
part upon any such state of facts. Such a "contract
17
<PAGE>
right" may not be modified retroactively without the consent of such director,
officer, employee or agent.
The indemnification provided by this Article VI shall not be deemed
exclusive of any other rights to which those indemnified may be entitled under
any By-Law, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his or her official capacity and as to action in
another capacity while holding such office, and 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 and administrators of such a person.
Section 6.07. Insurance. The Corporation may purchase and maintain
---------
insurance on behalf of any person who is or was or has agreed to become a
director or officer of the Corporation, or is or was serving at the request of
the Corporation as a director or officer of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against
him or her and incurred by him or her or on his or her behalf in any such
capacity, or arising out of his or her status as such, whether or not the
Corporation would have the power to indemnify him or her against such liability
under the provisions of this Article, provided that such insurance is available
on acceptable terms, which determination shall be made by a vote of a majority
of the entire Board of Directors.
Section 6.08. Severability. If this Article or any portion hereof shall be
------------
invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify each director or officer and may
indemnify each employee or agent of the Corporation as to costs, charges and
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, including an action by or in the
right of the Corporation, to the fullest extent permitted by any applicable
portion of this Article that shall not have been invalidated and to the fullest
extent permitted by applicable law.
ARTICLE VII
GENERAL PROVISIONS
Section 7.01. Dividends. Subject to any applicable provisions of law and
---------
the Certificate of Incorporation, dividends upon the shares of the Corporation
may be declared by the Board of Directors at any regular or special meeting of
the Board of Directors and any such dividend may be paid in cash, property, or
shares of the Corporation's capital stock.
A member of the Board of Directors, or a member of any Committee designated
by the Board of Directors shall be fully protected in relying in good faith upon
the records of the Corporation and upon such information, opinions, reports or
statements presented to the Corporation by any of its officers or employees, or
Committees of the Board of Directors, or by any other person as to matters the
director reasonably believes are within such other person's professional or
expert competence and who has been selected with reasonable care by or on
18
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behalf of the Corporation, as to the value and amount of the assets, liabilities
and/or net profits of the Corporation, or any other facts pertinent to the
existence and amount of surplus or other funds from which dividends might
properly be declared and paid. [Sections 172, 173.]
Section 7.02. Reserves. There may be set aside out of any funds of the
--------
Corporation available for dividends such sum or sums as the Board of Directors
from time to time, in its absolute discretion, thinks proper as a reserve or
reserves to meet contingencies or for repairing or maintaining any property of
the Corporation or for such other purpose as the Board of Directors shall think
conducive to the interest of the Corporation, and the Board of Directors may
similarly modify or abolish any such reserve. [Section 171.]
Section 7.03. Execution of Instruments. The Board of Directors, except as
------------------------
otherwise provided in these By-Laws, may prospectively or retroactively
authorize any officer or officers, employee or employees or agent or agents, in
the name and on behalf of the Corporation, to enter into any contract or
agreement or execute and deliver any instrument, including checks, drafts and
other orders for the payment of moneys out of the funds of the Corporation,
promissory notes, bonds or other evidences of indebtedness of the Corporation,
endorsements, assignments, transfers, stock powers or other instruments of
transfer of stock or other securities belonging to and/or standing in the name
of the Corporation, and any other documents requiring the execution by or in the
name of the Corporation, and any such authority may be general or confined to
specific instances, or otherwise limited.
Section 7.04. Corporate Indebtedness. The Board of Directors may
------------------------
prospectively or retroactively authorize the Chief Executive Officer or any
other officer, employee or agent of the Corporation to effect loans and advances
at any time for the Corporation from any banks, trust company or other
institution, or from any firm, corporation or individual, and, when authorized
by the Board of Directors so to do, may pledge and hypothecate or transfer any
securities or other property of the Corporation as security for any such loans
or advances. Such authority conferred by the Board of Directors may be general
or confined to specific instances, or otherwise limited.
Section 7.05. Fiscal Year. The Board of Directors may determine the fiscal
-----------
year of the Corporation and may from time to time change the same.
Section 7.06. Seal. The seal of the Corporation shall be circular in form
----
and shall contain the name of the Corporation, the year of its incorporation and
the words "Corporate Seal" and "Delaware". The form of such seal shall be
subject to alteration by the Board of Directors. The seal may be used by causing
it or a facsimile thereof to be impressed, affixed or reproduced, or may be used
in any other lawful manner.
Section 7.07. Books and Records; Inspection. Except to the extent otherwise
-----------------------------
required by law, the books and records of the Corporation shall be kept at such
place or places within or without the State of Delaware as may be determined
from time to time by the Board of Directors. Subject to the General Corporation
Law, the Board of Directors from time to time may determine whether, to what
extent, at what times and places, and under what conditions and regulations, the
accounts, books and papers of the Corporation, or any of them, shall be open to
19
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the inspection of stockholders; and no stockholder shall have any right to
inspect any account, book or paper of the Corporation except as expressly
conferred by the General Corporation Law or authorized by the Board of
Directors.
ARTICLE VIII
AMENDMENT OF BY-LAWS
Section 8.01. Amendment. Subject to the provisions of the Certificate of
---------
Incorporation, these By-Laws may be amended, altered or repealed:
(a) by resolution adopted by a majority of the Board of Directors
at any special or regular meeting of the Board of Directors if, in the
case of such special meeting only, notice of such amendment,
alteration or repeal is contained in the notice or waiver of notice of
such meeting; or
(b) at any regular or special meeting of the stockholders if, in
the case of such special meeting only, notice of such amendment,
alteration or repeal is contained in the notice or waiver of notice of
such meeting. [Section 109(a).]
ARTICLE IX
CONSTRUCTION
Section 9.01. Construction. Whenever in these By-Laws references are made
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to the Certificate of Incorporation, such references shall be deemed to be
references to the Certificate of Incorporation, as the same, at the time of the
adoption of these By-Laws, may have been amended and as the same, subsequent to
such time, may be amended; and wherever in these By-Laws references are made to
the By-Laws of the Corporation, such references shall be deemed to be references
to these By-Laws, and to the same as they from time to time may be amended.
Wherever in these By-Laws references are made to the General Corporation Law,
such references shall be deemed to be references to the General Corporation Law
of the State of Delaware.
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