BY-LAWS
OF
USFREIGHTWAYS CORPORATION
AS ADOPTED AUGUST 17, 2000
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BY-LAWS
of
USFreightways Corporation
Dated August 17, 2000
ARTICLE I
Offices
SECTION 1.1 Offices. USFreightways Corporation (the
"Corporation") may have offices either within or without the State of Delaware.
The registered office of the Corporation and the name of the registered agent of
the Corporation are as is set forth in the Restated Certificate of Incorporation
of the Corporation, or as may subsequently be or have been changed by resolution
of the Board of Directors (the "Board").
ARTICLE II
Meetings of Stockholders
SECTION 2.1. Annual Meetings. An annual meeting of the
stockholders of the Corporation for the election of directors and for the
transaction of such other business as may properly come before the meeting shall
be held on such date and at such time as the Board may from time to time
determine, or, if not so designated, then at 10:00 a.m., on the third Tuesday in
April in each year if not a legal holiday, and, if a legal holiday, at the same
hour on the next succeeding work day, and at such place as shall be designated
by the Board in the notice thereof.
At any annual meeting of stockholders, only such business
shall be conducted as shall have been brought before the annual meeting (i) by
or at the direction of the chairman of the meeting or (ii) by any stockholder
who complies with the procedures set forth in this Section 2.1.
For business properly to be brought before an annual meeting
by a stockholder, the stockholder must have given timely notice thereof in
proper written form 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 30 days nor more
than 60 days prior to the annual meeting; provided, however, that in the event
that less than 40 days' notice or prior public disclosure of the date of the
annual meeting is given or made to stockholders, notice by the stockholder to be
timely must be received not later than the close of business on the 10th day
following the day on which such notice of the date of the annual meeting was
mailed or such public disclosure was made. To be in proper written form, a
stockholder's notice to the Secretary shall set forth in writing as to each
matter the stockholder proposes to bring before the annual meeting: (i) a brief
description of the business desired to be brought before the annual meeting and
the reasons for conducting such business at the annual meeting; (ii) the name
and address, as they appear on the Corporation's books, of the stockholder
proposing such business; (iii) the class and number of shares of the Corporation
which are beneficially owned by the stockholder; and (iv) any material interest
of the stockholder in such business. Notwithstanding anything in the By-laws to
the contrary, no business shall be conducted at any annual meeting except in
accordance with the procedures set forth in this Section 2.1.
SECTION 2.2. Special Meetings.A special meeting of the
stockholders for any purpose or purposes may be called at any time by the Board,
or by any committee of the Board which has been duly designated by the Board and
whose powers and authority, as expressly provided in a resolution of the Board,
include the power to call such meetings, and such meeting shall be held on such
date and at such place and hour as shall be designated in the notice thereof.
Upon written request of any stockholder or stockholders holding in the aggregate
one-fifth of the voting power of all stockholders delivered in person or sent by
registered mail to the Chairman of the Board, the Chief Executive Officer, the
President or the Secretary of the Corporation, the Secretary shall call a
special meeting of stockholders to be held at such time and place as the board
my fix; provided, however, that no stockholder may request a Special Meeting
pursuant to this Section 2.2 on more than two occasions during any twelve month
period. Only such business as is specified in the notice of any special meeting
of the stockholders shall come before such meeting.
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SECTION 2.3. Notice of Meetings. Notice of each meeting of the
stockholders shall be given not less than 10 nor more than 60 days before the
date of the meeting to each stockholder of record entitled to notice of, or to
vote at, such meeting by delivering a typewritten or printed notice thereof to
such stockholder personally or by depositing such notice in the United States
mail, postage prepaid, directed to such stockholder at such person's address as
it appears on the stock record of the Corporation. Every such notice shall state
the place, date and hour of the meeting and, in the case of a special meeting is
called. Notice of the time, place and purpose of any meeting of stockholders may
be waived in writing, either before or after such meeting, and will be waived by
any stockholder by such person's attendance thereat, in person or by proxy
(unless such stockholder protests, prior to or at the commencement of the
meeting, the lack of proper notice to such stockholder). Any stockholder waiving
notice of a meeting shall be bound by the proceedings of any such meeting in all
respects as if due notice thereof had been given.
SECTION 2.4. Adjournments. Any meeting of stockholders, annual
or special, may adjourn from time to time to reconvene at the same or some other
place, and notice need not be given of any such adjourned meeting if the time
and place thereof are announced at the meeting at which the adjournment is
taken. At the adjourned meeting the Corporation may transact any business which
might have been transacted at the original meeting. If the adjournment is for
more than thirty days, or if after the adjournment a new record date is fixed
for the adjourned meeting, a notice of the adjourned meeting shall be given to
each stockholder of record entitled to vote at the meeting.
SECTION 2.5. Quorum and Manner of Acting. The presence in
person or by proxy of stockholders holding of record a majority of the shares of
stock of the Corporation entitled to be voted shall constitute a quorum for the
transaction of business at any meeting of the stockholders. In the absence of a
quorum at any such meeting or any adjournment or adjournments thereof, a
majority in voting interest of those present in person or by proxy and entitled
to vote, or, in the absence therefrom of all the stockholders, any officer
entitled to preside at, or to act as secretary of, such meeting, may adjourn
such meeting from time to time in the manner provided in Section 2.4 until
stockholders holding the amount of stock requisite for a quorum shall be present
in person or by proxy. The absence from any meeting in person or by proxy of
stockholders holding the number of shares of stock of the Corporation required
for action upon any given matter which may properly come before the meeting if
there shall be present there at, in person or by proxy of stockholders holding
the number of shares of stock of the Corporation required for action upon any
given matter shall be present there at, in person or by proxy, stockholders
holding the number of shares of stock of the Corporation required in respect of
such other matter. The stockholders present at a duly called or convened
meeting, at which a quorum is present, may continue to transact business until
adjournment, notwithstanding the withdrawal of enough stockholders to leave less
than a quorum.
SECTION 2.6. Organization of Meetings. At each meeting of
the stockholders, one of the following shall act as chairman of the meeting
and preside there at, in the following order of precedence:
(a) the Chairman of the Board, or, if such person is not
present or if no person holds such office, any officer or director of the
Corporation designated by the Board; or
(b) any officer or director of the Corporation designated by a
majority in voting interest of the stockholders present in person or by proxy
and entitled to vote there at.
The person whom the chairman of the meeting shall appoint,
shall act as secretary of the meeting and keep the minutes thereof.
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SECTION 2.7. Order of Business. The order of business at each
meeting of the stockholders shall be determined by the chairman of the meeting,
but such order of business may be changed by a majority in voting interest of
those present in person or by proxy at such meeting and entitled to vote there
at. The chairman of the meeting shall have the right and authority to prescribe
such acts and things as are necessary or desirable for the proper conduct of the
meeting, including, without limitation, the establishment of procedures for the
maintenance of order and safety, limitations on the time allotted to questions
or comments on the affairs of the Corporation, restrictions on entry to such
meeting after the time prescribed for the commencement thereof, and the opening
and closing of the voting polls.
The chairman of any meeting shall, if the facts warrant,
determine and declare to such meeting that business was not properly brought
before the annual meeting in accordance with the provisions of Sections 2.1 or
2.2 hereof and, if such person should so determine, such person shall so declare
to the meeting and any such business not properly brought before the meeting
shall not be transacted.
SECTION 2.8. Voting. Each stockholder shall, at each meeting
of the stockholders, be entitled to one vote in person or by proxy for each
share of stock of the Corporation which has voting power on the matter in
question held by such person and registered in such person's name on the stock
record of the Corporation:
(a) on the date fixed pursuant to the provisions of Section
8.6 of Article VIII of these By-laws as the record date for the determination of
stockholders who shall be entitled to receive notice of and to vote at such
meeting; or
(b) if no record date shall have been so fixed, then at the
close of business on the day next preceding the day on which notice of the
meeting shall be given or, if notice of the meeting shall be waived, at the
close of business on the day next preceding the day on which the meeting shall
be held, or, if no record date for determining stockholders entitled to express
consent to corporate action in writing without a meeting shall have been fixed,
the day on which the first written consent is expressed.
Shares of its own stock belonging to the Corporation or to
another corporation, if a majority of the shares entitled to vote in the
election of directors of such other corporation is held, directly or indirectly,
by the Corporation, shall neither be entitled to vote nor be counted for quorum
purposes. Any vote of stock of the Corporation may be given at any meeting of
the stockholders by the person entitled to vote the same in person or by proxy
(who need not be a stockholder) appointed by an instrument in writing delivered
to secretary of the meeting; provided, however, that no proxy shall be voted or
acted upon after three years from its date unless such proxy provides for a
longer period. The attendance at any meeting of a stockholder who may
theretofore have given a proxy shall not have the effect of revoking the same
unless such person shall in writing so notify the secretary of the meeting prior
to voting of the proxy. Shares standing in the names of two or more persons
shall be voted or represented in accordance with the determination of the
majority of such persons, or, if only one of such persons is present in person
or represented by proxy, such person shall have the right to vote such shares
and such shares shall be deemed to be represented for the purpose of determining
a quorum. At all meetings of stockholders for the election of directors a
plurality of the votes cast shall be sufficient to elect. All other elections
and questions shall, unless otherwise provided by law, the Certificate of
Incorporation or these By-laws, be decided by the vote which could be cast by
the holders of all shares of stock entitled to vote thereon which are present in
person or represented by proxy at the meeting. Unless otherwise required by law
or directed by the chairman of the meeting, the vote at any meeting of the
stockholders on any question need not be by ballot. On a vote by ballot, each
ballot shall be signed by the stockholder voting, or by such person's proxy if
there be such proxy, and shall state the number of shares voted.
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SECTION 2.9. Consent in Lieu of Meeting. Anything herein to
the contrary notwithstanding, any action required to be taken at any annual or
special meeting of stockholders of the Corporation, or any action which may be
taken at any annual or special meeting of such stockholders, may be taken at any
annual or special meeting of such stockholders or may be taken without a
meeting, without prior notice and without a vote if a consent 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. Prompt notice of the taking of the
corporate action without a meeting by stockholders who have not consented in
writing and any certificate filed with respect to such matter shall state that
such written notice has been given.
SECTION 2.10. List of Stockholders. It shall be the duty of
the officer of the Corporation who shall have charge of the stock ledger of
record, either directly or through another officer of the Corporation or agent
thereof, to prepare and make, at least 10 days before every meeting of the
stockholders, a complete list of the stockholders entitled to vote there at,
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 10 days prior
to the meeting, either at the place where the meeting is to be held or at such
other place within the city where the meeting is to be held, which place shall
be specified in the notice of the meeting. Such list shall also be produced and
kept at the time and place of the meeting during the whole time thereof and may
be inspected by any stockholder who is present. The stock record shall be the
only evidence as to who are the stockholders entitled to examine the stock
record, such list or the books of the Corporation or to vote in person or by
proxy at any meeting of the stockholders.
SECTION 2.11. Inspectors. Either the Board or, in the absence
of a designation of inspectors by the Board, the chairman of the meeting may, in
its or such person's discretion, appoint two or more inspectors, who need not be
stockholders, who shall receive and take charge of ballots and proxies and
decide all questions relating to the qualification of those asserting the right
to vote and the validity of ballots and proxies. In the event of the failure or
refusal to serve of any inspector designated by the Board, the chairman of the
meeting shall appoint an inspector to act in place of each such inspector
designated by the Board. In the absence of a designation of inspectors by the
Board and the chairman of the meeting, the secretary of the meeting shall
perform the duties which would otherwise have been performed by the inspectors.
ARTICLE III
Board of Directors
SECTION 3.1. General Powers. The property, business,
affairs and policies of the Corporation shall be manageD by or under the
direction of the Board.
SECTION 3.2. Number and Term of Office.The Board shall consist
of not less than three nor more than twenty-one directors. The exact number of
directors shall be determined from time to time by a resolution or resolutions
adopted by the affirmative vote of a majority of the total number of directors
which the corporation would have if there were no vacancies (the "entire
Board"). The directors shall be divided into three classes. Each class shall
consist, as nearly as may be possible, of one-third of the total number of
directors constituting the entire Board. If the classes of directors are not
equal in number, the Board shall determine which class shall contain an unequal
number of directors.
Upon, or as soon as practicable following, the filing of the
Restated Certificate of Incorporation, the first class of directors shall be
elected for a term to expire at the annual meeting next ensuing, the second
class until the second annual meeting thereafter, and the third class until the
third annual meeting thereafter. At each succeeding annual meeting of
stockholders, successors to the class of directors whose term expires at that
annual meeting shall be elected for a three-year term. If the number of
directors is changed in accordance with the terms of the Certificate of
Incorporation and this Section 3.2, any increase or decrease shall be
apportioned among the classes so as to maintain the number of directors in each
class as nearly equal as possible and any additional director of any class
elected to fill a vacancy resulting from an increase in such class shall hold
office for a term that shall coincide with the remaining term of that class, but
in no case will a decrease in the number of directors shorten the term of any
incumbent director. A director shall hold office until the annual meeting for
the year in which his or her term expires and until his or her successor shall
be elected and shall qualify, subject, however, to the director's prior death,
resignation, disqualification or removal from office.
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SECTION 3.3 Nomination and Election of Directors. Nominations
of persons for election to the Board may be made at any annual meeting of
stockholders by or at the direction of the Board or by any stockholder of the
Corporation entitled to vote for the election of directors at the meeting who
was a stockholder of record at the time of giving of notice provided for in this
Section 3.3 and who complies with the notice procedures set forth in this
Section 3.3. Any such nomination by a stockholder shall be made pursuant to
timely notice in writing to the Secretary of the Corporation. To be timely
notice for an annual meeting, a stockholder's notice shall be delivered to and
received by the Secretary of the Corporation not less than 60 days nor more than
90 days prior to the first anniversary of the preceding year's annual meeting;
provided that, in the event that the date of the annual meeting is advanced by
more than 30 days or delayed by more than 60 days from such anniversary date,
notice by the stockholder to be timely must be so delivered and received not
earlier than the 90th day prior to such annual meeting and not later than the
close of business on the later of the 60th day prior to such annual meeting and
the 10th day following the day on which a public announcement of the date of
such meeting is first made. Notwithstanding anything in the foregoing sentence
to the contrary, in the event that the number of directors to be elected to the
Board is increased and there is no public announcement naming all of the
nominees for director or specifying the size of the increased Board made by the
Corporation at least 70 days prior to the first anniversary of the preceding
year's annual meeting, a stockholder's notice required by this Section 3.3 shall
also be considered timely, but only with respect to nominees for any new
positions created by such increase, if it shall be delivered to the Secretary of
the Corporation at the principal executive office of the Corporation not later
than the close of business on the 10th day following the day on which such
public announcement is first made by the Corporation.
Nominations of persons for election to the Board may be made
at a special meeting of stockholders at which directors are to be elected
pursuant to the Corporation's notice of meeting (i) by or at the direction of
the Board or (ii) by any stockholder of the Corporation who is a stockholder of
record at the time of giving of notice provided for in this Section 3.3, who
shall be entitled to vote at the meeting and who complies with the notice
procedures set forth in this Section 3.3. In the event the Corporation calls a
special meeting of stockholders for the purpose of electing one or more
directors to the Board, any such stockholder may nominate a person or persons
(as the case may be) for election to such position(s) as specified in the
Corporation's notice of meeting, if the stockholder's notice shall be delivered
to and received by the secretary of the Corporation at the principal executive
offices of the Corporation not earlier than the 90th day prior to such special
meeting and not later than the close of business on the later of the 60th day
prior to such special meeting and the 10th day following the day on which a
public announcement is first made of the date of the special meeting and of the
nominees proposed by the Board to be elected at such meeting.
Any stockholder's notice delivered pursuant to this Section
3.3 shall set forth in writing (i) as to each person whom the stockholder
proposes to nominate for election or re-election as a director (A) the name,
age, business address and residence address of such person, (B) the principal
occupation or employment of such person, (C) the number of shares of stock of
the Corporation which are beneficially owned by such person, and (D) any other
information relating to such person that is required to be disclosed in
connection with the solicitation of proxies for election of directors, or as
otherwise required, in each case pursuant to Regulation 14A under the Securities
Exchange Act of 1934 (the "Exchange Act") (including, without limitation, such
person's written consent to being named in proxy statement as a nominee and to
serving as a director if elected), and any other applicable laws or rules or
regulations of any governmental authority or of any national securities exchange
or similar body overseeing any trading market on which shares of the Corporation
are traded; and (ii) as to the stockholder giving the notice and the beneficial
owner, if any, on whose behalf the nomination is made (A) the name and address
of such stockholder, as they appear on the Corporation's books, and of such
beneficial owner and (B) the class and number of shares of the Corporation which
are owned beneficially and of record by such stockholder and such beneficial
owner.
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At the request of the Board, any person nominated by the Board
for election as a director shall furnish to the Secretary of the Corporation
that information required to be set forth in a stockholder's notice of
nomination which pertains to the nominee. No person shall be eligible for
election as a director of the Corporation unless nominated in accordance with
the procedures set forth in this Section 3.3. The chairman of the meeting shall,
if the facts warrant, determine and declare to the meeting that a nomination was
not made in accordance with the procedures prescribed by these By-Laws and in
that event the defective nomination shall be disregarded. In addition to the
provisions of this Section 3.3, a stockholder shall also comply with all
applicable requirements of the Exchange Act and the rules and regulations
thereunder, and any other applicable laws or rules or regulations of an
governmental authority or any national securities exchange or similar body
overseeing any trading market on which shares of the Corporation are traded,
with respect to the matters set forth herein.
At each meeting of the stockholders for the election of
directors, provided a quorum is present, the directors nominated in accordance
with this Section 3.3 for election at such meeting shall be elected by a
plurality of the votes validly cast in such election. Directors need not be
stockholders of the Corporation or residents of the State of Delaware.
SECTION 3.4 Meetings. (a) Regular Meetings.Regular meetings of
the Board or any committee thereof shall be held as the Board or such committee
thereof shall from time to time determine. If any day fixed for a regular
meeting shall be a legal holiday at the place where the meeting is to be held,
then the meeting which would otherwise be held on that day shall be postponed
until the next succeeding business day.
(b) Notice of Meetings. Special meetings of the Board, at
which any and all business may be transacted, shall be held whenever called by
the Chief Executive Officer, the President, the Chairman of the Board or a
majority of the Board.
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(c) Notice of Meetings. No notice of regular meetings of the
Board or of any committee thereof or of any adjourned meeting thereof need be
given. Notice shall be given to each special meeting of the Board or adjournment
thereof, including the time and place thereof. Notice of each such meeting shall
be mailed to each director, addressed to such person at such person's residence
or usual place of business, at lease two days before the day on which such
meeting is to be held, or shall be sent to such person at such place by
facsimile, telegraph, cable, wireless or other form of recorded communication,
or be delivered personally or by telephone not later than the day before the day
on which such meeting is to be held, but notice need not be given to any
director who shall attend meeting. A written waiver of notice, signed by the
person entitled thereto, whether before or after the time of the meeting stated
therein, shall be deemed equivalent to notice. The purposes of a meeting of the
Board or any committee thereof need not be specified in the notice thereof.
(d) Time and Place of Meetings. Regular meetings of the Board
or any committee thereof shall be held at such time or times and place or places
as the Board or such committee may from time to time determine. Each special
meeting of the Board or any committee thereof shall be held at such time and
place as the caller or callers thereof may determine. In the absence of such a
determination, each regular meeting or special meeting of the Board or any
committee thereof shall be held at such time and place as shall be designated in
the notices or waivers of notice thereof.
(e) Quorum and Manner of Acting. A majority of the directors
then in office and a majority of the members of any committee shall be present
in person at any meeting thereof in order to constitute a quorum for the
transaction of business at such meeting and the vote of a majority of the
directors present at any such meeting at which a quorum is present shall be
necessary for the passage of any resolution or for an act to be the act of the
Board or such committee. In the absence of a quorum, a majority of the directors
present thereat may adjourn such meeting from time to time until a quorum shall
be present there at. Notice of any adjourned meeting need not be given.
(f) Organization of Meetings. At each meeting of the Board,
the Chairman of the Board or, if such person is not present or if no person
holds such office, any director chosen by a majority of the directors present
there at shall act as chairman of the meeting and preside thereat. The person
whom the chairman of the meeting shall appoint shall act as secretary of such
meeting and keep the minutes thereof. The order of business at each meeting of
the Board shall be determined by the chairman of such meeting.
(g) Consent in Lieu of Meetings. Anything herein to the
contrary notwithstanding, any action required or permitted to be taken at any
meeting of the Board or any committee thereof may be taken without a meeting if
all members of the Board or such committee, as the case may be, consent thereto
in a writing or writings and such writing or writings are filed with the minutes
of the proceedings of the Board or such committee.
(h) Action by Communications Equipment.The directors may
participate in a meeting of the Board or any committee thereof by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other and such participation
shall constitute presence in person at such meeting.
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SECTION 3.5. Compensation. Each director who is not also a
salaried employee of the Company or any of its affiliates, in consideration of
he or she serving as such, shall be entitled to receive from the Corporation
such amount per annum and such fees for attendance at meetings of the Board or
of any committee, or both, as the Board shall from to time determine. The Board
may provide that the Corporation shall reimburse each director or member of a
committee, including any director who is a salaried employee of the Company or
any of its affiliates, for any expenses incurred by such person on account of
such person's attendance at any such meeting.
SECTION 3.6. Resignation, Removal and Vacancies. Any director
may resign at any time by giving written notice of such person's resignation to
the Board. Any such resignation shall take effect at the time specified therein
or, if the time when it shall become effective shall not be specified therein,
when accepted by the Board. Except as aforesaid, the acceptance of such
resignation shall not be necessary to make it effective.
Any director may be removed at any time for cause by vote of the
holders of a majority in voting interest of shares then entitled to vote at an
election of directors. The vacancy in the Board caused by any such removal may
be filled by the stockholders at such meeting or as provided in the next
paragraph of these By-laws.
In the case of any vacancy on the Board or in the case of any
newly created directorship, a director to fill the vacancy or the newly created
directorship for the unexpired portion of the term being filled may be elected
by a majority of the directors of the Corporation then in office, though less
than a quorum, or by a sole remaining director. The director elected to fill
such vacancy shall hold office for the unexpired term in respect of which such
vacancy occurred and until such person's successor shall be elected and shall
qualify or until such person's earlier death or resignation or removal in the
manner herein provided.
ARTICLE IV
Committees
SECTION 4.1. Number, Appointment, Term of Office. etc. The
Board, by resolution or resolutions passed by a majority of the Board, may
designate one or more committees, each committee to consist of one or more
directors then in office. Each member of any such committee shall continue as
such only so long as such person remains a director and may be removed at any
time, with or without cause, by a majority of the Board. Any vacancy on any
committee may be filled at any time by the vote of a majority of the Board.
In the absence or in case of the disqualification of a member
or members of any such committee, the member or members of such committee
present and not disqualified from voting at a meeting of such committee, whether
or not such person or they constitute a quorum, may unanimously appoint another
member of the Board to act at such meeting in place of any absent or
disqualified member.
SECTION 4.2. Functions and Powers. Each committee shall have
such functions and powers as the Board shall deem advisable and, subject to any
limitations or restrictions which may be prescribed by resolution of the Board,
if an Executive Committee is designated, it shall have and may exercise all the
powers and authority of the Board in the management of the property, business,
affairs and policies of the Corporation, including the power and authority to
declare dividends and to authorize the issuance of stock of the Corporation, and
may authorize the seal of the Corporation to be affixed to all papers which may
require it; provided, however, that no committee shall have the power of
authority to: approve amendments to the Certificate of Incorporation of the
Corporation (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 as provided in Section 151(a) of the Delaware General Corporation
Law, fix the designations and any of the preferences or rights of such shares or
fix the number of shares of any series of stock or authorize the increase or
decrease of the shares of any series); adopt agreements of merger or
consolidation; recommend to the stockholders the sale, lease or exchange of all
or substantially all the property and assets of the Corporation; recommend to
the stockholders the dissolution of the Corporation or the revocation of such a
dissolution; or amend these By-laws.
SECTION 4.3. Rules. Subject to the provisions of these
By-laws, each committee by resolution adopted by a majority of all the
members thereof shall fix its rules of procedure.
<PAGE>
ARTICLE V
Officers
SECTION 5.1. Election and Appointment and Term of Office. The
Corporation shall have such officers with such titles as shall be stated in a
resolution of the Board, and with such duties as shall be given them as
hereinafter provided or as may otherwise be specifically given them by the
Board, but such officers shall include at least (a) a Chairman of the Board or
one or more Vice-Chairmen of the Board or a Chief Executive Officer or a
President, or any or all the foregoing, and (b) a Secretary or one or more
Assistant Secretaries or a Treasurer or one or more Assistant Treasurers, or any
or all of the foregoing. One of such officers shall have the duty to record the
proceedings of the meetings of stockholders and directors in a book to be kept
for that purpose. Any number of offices may be held by the same person except
that at least one person who holds an office referred to in clause (a) of the
second preceding sentence shall not be the same as at least one person who holds
any office referred to in clause (b) of the second preceding sentence.
SECTION 5.2. Resignation, Removal and Vacancies. Any officer
may resign at any time by giving written notice of such person's resignation to
the Board. Any such resignation shall take effect at the time specified therein
or, if the time when it shall become effective shall not be specified therein
when accepted by the Board. Except as aforesaid, the acceptance of such
resignation shall not be necessary to make it effective.
Any officer, agent or employee elected or appointed by the
Board may be removed, with or without cause, at any time by the Board. Any agent
or employee appointed by an officer may be removed, with or without cause, at
any time by such officer.
A vacancy in any office may be filled for the unexpired
portion of the term in the same manner as provided in these By-laws for election
or appointment to such office.
SECTION 5.3. Duties and Functions. If any of the
following offices is created and a person appointed or elected thereto,
and unless the Board otherwise provides, such offices and persons shall have
the following duties and functions:
(a) Chairman. If a Chairman of the Board is appointed or
elected, such person shall be a member of the Board, shall preside at meetings
of the Board and of the stockholders at which such person shall be present,
shall perform such duties as are incident to the office of the Chairman of the
Board, and shall perform such other duties as may from time to time be
prescribed by the Board.
(b) Vice-Chairman. If any Vice-Chairman or Vice-Chairmen of
the Board are appointed or elected, they shall be members of the Board, shall
perform such duties as are incident to the office of the Vice-Chairman of the
Board, and shall perform such other duties as may from time to time be
prescribed by the Board.
(c) Chairman of the Executive Committee. If a Chairman of the
Executive Committee is appointed or elected, such person shall be a member of
the Board, shall preside at meetings of the Executive Committee, shall when
requested consult with and advise the other officers of the Corporation, and
shall perform such other duties as may be agreed upon with them or as the Board
or the Executive Committee may from time to time determine.
(d) Chief Executive Officer. If a Chief Executive Officer is
appointed or elected, such person shall, subject to the control of the Board,
have general charge and management of the property, business and affairs of the
Corporation and shall have the direction of, and may assign duties to, all other
officers (other than the Chairman and any Vice-Chairman, if either or both is
appointed or elected), agents and employees.
(e) President. If a President is appointed or elected,
such person shall have such powers and duties as shall be prescribed by the
Chief Executive Officer, if one is appointed or elected, or the Board. The
President shall report to the Chief Executive Officer.
(f) Chief Operating Officer. If any Chief Operating Officer is
appointed or elected, such person shall have such powers and duties as shall be
prescribed by the Chief Executive Officer or the President, if either or both is
appointed or elected, or the Board.
<PAGE>
(g) Chief Financial Officer. If any Chief Financial Officer is
appointed or elected, such person shall perform all the powers and duties of the
offices of the chief financial officer and chief accounting officer and in
general shall have overall supervision of the financial operations of the
Corporation. The Chief Financial Officer shall also perform such other duties as
the Chief Executive Officer, the President or the Board may from time to time
determine.
(h) Vice Presidents. If any Vice President or Vice Presidents
are appointed or elected, they shall have such powers and duties as shall be
prescribed by the Chief Executive Officer or the President, if either or both is
appointed or elected, or the Board. Vice Presidents for this purpose shall
include Senior, Executive, Assistant and all other categories or types of Vice
Presidents.
(i) Secretary. If a Secretary is appointed or elected, such
person shall attend and keep the records of all meetings of the stockholders and
the Board in one or more books kept for that purpose, shall give or cause to be
given due notice of all meetings in accordance with these By-laws and as
required by law, shall notify the several officers of the Corporation of all
action taken by the Board concerning matters relating to their duties, shall
transmit to the proper officers copies of all contracts and resolutions approved
by the Board or any committees of the Board, shall be custodian of the seal of
the Corporation and of all contracts, deeds, documents and other corporate
papers, records (except accounting records) and indicia of title to properties
owned by the Corporation as shall not be committed to the custody of another
officer by the Chief Executive Officer or the President, if either or both is
appointed or elected, or the Board, shall affix or cause to be affixed the seal
of the Corporation to instruments requiring the same when the same have been
signed on behalf of the corporation by a duly authorized officer, shall perform
all duties and have all powers incident to the office of Secretary, and shall
perform such other duties as shall be assigned to such person by the Chief
Executive Officer or the President, if either or both is appointed or elected,
or the Board. One or more Assistant Secretaries may be appointed or elected, who
shall perform all the duties and have all the powers of the Secretary in the
absence of or in case of a failure to appoint or elect or when so delegated by
the Secretary, and as the Chief Executive Officer or the President, if either or
both is appointed or elected, or the Board may direct.
(j) Treasurer. If a Treasurer is appointed or elected, such
person shall perform the duties incident to the office of Treasurer and such
other duties as shall be assigned to such person by the Chief Executive Officer
or the President, if either or both is appointed or elected, or the Board. One
or more Assistant Treasurers may be appointed or elected who shall perform all
the duties and have all the powers of the Treasurer in the absence of, or in the
case of a failure to appoint or elect, or when so delegated by the Treasurer,
and as the Chief Executive Officer or the President, if either or both is
appointed or elected, or the Board may direct.
(k) Controller. If a Controller is appointed or elected, such
person shall perform all the duties incident to the office of Controller and
such other duties as may be assigned to such person by the Chief Executive
Officer or the President, if either or both is appointed or elected., or the
Board. One or more Assistant Controllers may be appointed or elected who shall
perform all the duties and have all the powers of the Controller in the absence
of, or in the case of a failure to appoint or elect, or when so delegated by,
the Controller, and as the Chief Executive Officer or the President, if either
of both is appointed or elected, or the Board may direct.
<PAGE>
ARTICLE VI
Waiver of Notices; Place of Meetings
SECTION 6.1. Waiver of Notices. Anything herein to the
contrary notwithstanding, whenever notice is required to be given to any
director or member of a committee or stockholder, a waiver thereof in writing,
signed by the person entitled to such notice shall be deemed equivalent to
notice, whether given before or after the time specified therein and, in the
case of a waiver of notice of a meeting, whether or not such waiver specifies
the purpose of or business to be transacted at such meeting. Attendance of a
person at a meeting shall constitute a waiver of notice of such meeting, except
where the person attends the 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, and does so object.
SECTION 6.2. Place of Meetings. Any meeting of the
stockholders, the Board or any committee may be held within or without the State
of Delaware.
ARTICLE VII
Execution and Delivery of Documents; Deposits; Proxies; Books and Records
SECTION 7.1. Execution and Delivery of Documents; Delegation.
The Board shall designate the officers, employees and agents of the Corporation
who shall have power to execute and deliver deeds, contracts, mortgages, bonds,
debentures, checks, drafts and other orders for the payment of money and other
documents for and in the name of the Corporation and may authorize such
officers, employees and agents to delegate such power (including authority to
redelegate) by written instrument to other officers, employees or agents of the
Corporation. Such delegation may be by resolution or otherwise and the authority
granted shall be general or confined to specific matters, all as the Board may
determine. In the absence of such designation referred to in the first sentence
of such designation referred to in the first sentence of this Section, the
officers of the Corporation shall have such power so referred to, to the extent
incident to the normal performance of their duties.
SECTION 7.2. Deposits. All funds of the Corporation not
otherwise employed shall be deposited from time to time to the credit of the
Corporation or otherwise as the Board or any officer of the Corporation to whom
power in that respect shall have been delegated by the Board shall select.
SECTION 7.3. Proxies in Respect of Stock or Other Securities
of Other Corporations.Unless otherwise provided by the Board, any officer of the
Corporation shall have the authority from time to time to appoint an agent or
agents of the Corporation to exercise in the name and on behalf of the
Corporation the powers and rights which the Corporation may have as the holder
of stock or other securities in any other corporation, to vote or consent in
respect of such stock or securities and to execute or cause to be executed in
the name and on behalf of the Corporation and under its corporate seal or
otherwise, such written proxies, powers of attorney or other instruments as such
person may deem necessary or proper in order that the Corporation may exercise
such powers and rights. Such officer may instruct any person or persons
appointed as aforesaid as to the manner of exercising such powers and rights.
SECTION 7.4. Books and Records. The books and records of
the Corporation may be kept at such places within or without the State of
Delaware as the proper officers of the Corporation may from time to time
determine.
ARTICLE VIII
Certificates; Stock Record; Transfer and Registration; New Certificates;
Record Date, etc.
SECTION 8.1. Certificates for Stock. Every holder of stock of
the Corporation shall be entitled to have a certificate certifying the number of
shares owned by such person in the Corporation and designating the class of
stock to which such shares belong, which shall otherwise be in such form as the
Board shall prescribe. Each such certificate shall be signed by, or in the name
of the Corporation by, the Chairman, a Vice-Chairman, the Chief Executive
Officer, the President or a Vice President of the Corporation and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of
the Corporation. Any of or all such signatures may be facsimiles. In case any
authorized officer who has signed or whose facsimile signature has been placed
upon a certificate shall have ceased to be such officer or authorized agent
before such certificate is issued, it may nevertheless be issued by the
Corporation with the same effect as if such person were such officer or
authorized agent on the date of issue. Every certificate surrendered to the
Corporation for exchange or transfer shall be canceled and a new certificate or
certificates shall not be issued in exchange for any existing certificate until
such existing certificate shall have been so canceled, except in cases provided
for in Section 8.4 of this Article.
<PAGE>
SECTION 8.2. Stock Record. A stock record in one or more
counterparts shall be kept of the name of the person, firm or corporation owning
the stock represented by each certificate for stock of the Corporation issued,
the number of shares represented by each such certificate, the date of issue
thereof and, in the case of cancellation, the date of cancellation. The person
in whose name shares of stock stand on the stock record of the Corporation shall
be deemed the owner thereof for all purposes as regards the Corporation.
SECTION 8.3. Transfer and Registration of Stock.
(a) Transfer. The transfer of stock and certificates of
stock which represent the stock of the corporation shall be governed by
Article 8 of Subtitle I of Title 6 of the Delaware Code.
(b) Registration. Registration of transfers of shares of the
Corporation shall be made only on the books of the Corporation by the registered
holder thereof, or by such person's attorney thereunto authorized by power of
attorney duly executed and filed with an officer of the Corporation, and on the
surrender of the certificate or certificates for such shares properly endorsed
or accompanied by a stock power duly executed.
SECTION 8.4. New Certificates.(a) Lost, Stolen or Destroyed
Certificates. Where a stock certificate has been lost, apparently destroyed or
wrongfully taken, the issuance of a new stock certificate or the claims based on
such certificate shall be governed by Article 8 of Subtitle I of Title 6 of the
Delaware Code.
(b) Mutilated Certificates. Where the holder of any
certificate for stock of the Corporation notifies the Corporation of the
mutilation of such certificate within a reasonable time after such person has
notice of it, the Corporation will issue a new certificate for stock in exchange
for such mutilated certificate theretofore issued by it.
(c) Bond. The Board may, in its discretion, require the owner
of the lost, stolen, destroyed or mutilated certificate to give the Corporation
a bond in such sum, limited or unlimited, in such form and with such surety or
sureties sufficed to indemnify the Corporation against any claim that may be
made against it on account of the loss, theft, destruction or mutilation of any
such certificate or the issuance of any such new certificate.
SECTION 8.5. Regulations. The Board may make such rules
and regulations as it may deem expedient, concerning the issue, transfer
and registration of certificates for stock of the Corporation.
SECTION 8.6. Fixing Date for Determination of Stockholders of
Record. 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, 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 may fix, in advance, a record date, which shall not be more than 60
nor less than 10 days before the date of such meeting, nor more than 60 days
prior to any other action. If no record date is fixed: (1) the record date for
determining stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the day next preceding the day
on which notice is given or, if notice is waived, at the close of business on
the day next preceding the day on which the meeting is held; (2) the record date
for determining stockholders entitled to express consent to corporate action in
writing without a meeting, when no prior action by the Board is necessary, shall
be the day on which the first written consent is expressed; (3) the record date
for determining stockholders for any other purpose shall be at the close of
business on the day on which the Board adopts the resolution relating thereto. A
determination of stockholders entitled to notice of or to vote at a meeting of
the stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board may fix a new record date for the adjourned meeting.
<PAGE>
ARTICLE IX
Seal
SECTION 9.1. Seal. The Corporate seal shall consist of a die
bearing the full name of the Corporation in the outer circle and the legend
"Corporate Seal 1991 Delaware" in the inner circle. This seal may be used by
causing it or a facsimile thereof to be impressed or affixed or reproduced or
otherwise.
ARTICLE X
Fiscal Year
SECTION 10.1 Fiscal Year. The fiscal year of the Corporation
shall end on the Saturday closest to December 31 in each year, or such other
date as the Board determines.
ARTICLE XI
Amendments
SECTION 11.1. Amendments. These By-laws may be amended,
altered or repealed by the vote of a majority of the Board, subject to the power
of the holders of a majority of the outstanding stock of the Corporation
entitled to vote in respect thereof, by their vote given at an annual meeting or
at any special meeting, to amend, alter or repeal any By-law made by the Board.
ARTICLE XII
Subject to Law
SECTION 12.1.
Subject to Law. All provisions of these By-Laws are subject to requirements
of applicable law and the Certificate of Incorporation of the Corporation.
ARTICLE XIII
Indemnification
SECTION 13.1. Power to Indemnify in Actions, Suits or
Proceedings Other Than Those by or in the Right of the Corporation. Subject to
Section 13.3 of this Article XIII, the Corporation shall indemnify and hold
harmless, to the fullest extent permitted by applicable law, any person who is
or was a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by
reason of the fact that such person is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection with
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, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe such person's conduct was
unlawful. The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which such person reasonably believed to be in or not
opposed to the best interests of the Corporation, or with respect to any
criminal action or proceeding, that such person had reasonable cause to believe
that such person's conduct was unlawful.
<PAGE>
SECTION 13.2. Power to Indemnify in Actions, Suits or
Proceedings by or in the Right of the Corporation. Subject to Section 13.3 of
this Article XIII, the Corporation shall indemnify and hold harmless, to the
fullest extent permitted by applicable law, any person who is or was a party or
is threatened to be made a party to any threatened, pending or completed action
or suit by or in the right of the Corporation to produce a judgment in its favor
by reason of the fact that he is or was a director or officer of the
Corporation, or is or was a director or officer of the Corporation serving at
the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the defense or settlement of such
action or suit if he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the Corporation; except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability, in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper.
SECTION 13.3. Authorization of Indemnification. Any
indemnification under this Article XIII (unless ordered by a court) shall be
made by the Corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer, employee or agent
is proper in the circumstances because he has met the applicable standard of
conduct set forth in Section 13.1 or Section 13.2 of this Article XIII, as the
case may be. Such determination shall be made (i) by the Board by a majority
vote of a quorum consisting of directors who were not parties to such action,
suit or proceeding, or (ii) by a committee of such directors designated by a
majority vote of such directors even though less than a quorum, or (iii) if such
a quorum is not obtainable, or, even if it is obtainable a quorum of
disinterested directors so directs, by independent legal counsel in a written
opinion, or (iv) by the stockholders. To the extent, however, 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 described above, or in
defense of any claim, issue or matter therein, he shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection therewith, without the necessity of authorization in the specific
case.
SECTION 13.4. Good Faith Defined. For purposes of any
determination under Section 13.3 of this Article XIII, a person shall be deemed
to have 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, or, with respect
to any criminal action or proceeding, to have had no reasonable cause to believe
such person's conduct was unlawful, if such person's action is based on the
records or books of account of the Corporation or another enterprise, or on
information supplied to such person by the officers of the Corporation or
another enterprise in the course of their duties, or on the advice of legal
counsel for the Corporation or another enterprise or on information or records
given or reports made to the Corporation or another enterprise by an independent
certified public accountant or by an appraiser or the expert selected with
reasonable care by the Corporation or another enterprise. The term "another
enterprise" as used in this Section 13.4 shall mean any other corporation or any
partnership, joint venture, trust, employee benefit plan or other enterprise of
which such person is or was serving at the request of the Corporation as a
director, officer, employee or agent. The provisions of this Section 13.4 shall
not be deemed to be exclusive or to limit in any way the circumstances in which
a person may be deemed to have met the applicable standard of conduct set forth
in Sections 13.1 or 13.2 of this Article XIII, as the case may be.
<PAGE>
SECTION 13.5 Indemnification by a Court. Notwithstanding any
contrary determination in the specific case under Section 13.3 of this Article
XIII, and notwithstanding the absence of any determination thereunder, any
director, officer, employee or agent may apply to any court of competent
jurisdiction in the State of Delaware for indemnification to the extent
otherwise permissible under Sections 13.1 and 13.2 of this Article XIII. The
basis of such indemnification by a court shall be a determination by such court
that indemnification of the director, officer, employee or agent is proper in
the circumstances because such person has met the applicable standards of
conduct set forth in Sections 13.1 or 13.2 of this Article XIII, as the case may
be. Neither a contrary determination in the specific case under Section 13.3 of
this Article XIII nor the absence of any determination thereunder shall be a
defense to such application or create a presumption that the director, officer,
employee or agent seeking indemnification has not met any applicable standard of
conduct. Notice of any application for indemnification pursuant to this Section
13.5 shall be given to the Corporation promptly upon the filing of such
application. If successful, in whole or in part, the director, officer, employee
or agent seeking indemnification shall also be entitled to be paid the expenses
of prosecuting such application.
SECTION 13.6. Expenses Payable in Advance. Expenses incurred
by a director or officer in defending or investigating a threatened or pending
action, suit or proceeding may be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director, officer, employee or agent to
repay such amount if it shall ultimately be determined that such person is not
entitled to be indemnified by the Corporation as authorized in this Article
XIII.
SECTION 13.7. Nonexclusivity of Indemnification and
Advancement of Expenses. The indemnification and advancement of expenses
provided by or granted pursuant to this Article XIII shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any By-Law, agreement, contract,
vote of stockholders or disinterested directors or pursuant to the direction
(howsoever embodied) of any court of competent jurisdiction or otherwise, both
as to action in their official capacity and as to action in another capacity
while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 13.1 and 13.2 of this
Article XIII shall be made to the fullest extent permitted by law. The
provisions of this Article XIII shall not be deemed to preclude the
indemnification of any person who is not specified in Section 13.1 or 13.2 of
this Article XIII but whom the Corporation has the power or obligation to
indemnify under the provisions of the Delaware General Corporation Law, or
otherwise.
SECTION 13.8. Insurance. The Corporation may purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise
against any liability asserted against such person and incurred by such person
in any such capacity, or arising out of such person's status as such, whether or
not the Corporation would have the power or the obligation to indemnify such
person against such liability under the Delaware General Corporation Law or the
provisions of this Article XIII.
SECTION 13.9. Certain Definitions. For purposes of this
Article XIII references to "the Corporation" shall include, in addition to the
resulting corporation, any constituent corporation (including any constituent of
a constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, employees or agents, so that any person who is or was a
director, officer, employee or agent of such constituent corporation, or is or
was serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, shall stand in the same
position under the provisions of this Article XIII 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. For purposes of
this Article XIII, references to "fines" shall include any excise taxes assessed
on a person with respect to an employee benefit plan; and references to "serving
at the request of the Corporation" shall include any service as a director,
officer, employee or agent of the Corporation which imposes duties on, or
involved services by, such director, officer, employee or agent with respect to
an employee benefit plan, its participants or beneficiaries; and a person who
acted in good faith and in a manner such person reasonably believed to be in the
interest of the participants and beneficiaries of an employee benefit plan shall
be deemed to have acted in a manner "not opposed to the best interests of the
Corporation" as referred to in this Article XIII.
<PAGE>
SECTION 13.10. Survival of Indemnification and Advancement of
Expenses. The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article XIII shall, unless otherwise provided when
authorized or ratified, 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 13.11. Limitation on Indemnification. Notwithstanding
anything contained in this Article XIII to the contrary, except for proceedings
to enforce rights to indemnification (which shall be governed by Section 13.5
hereof), the Corporation shall not be obligated to indemnify any director,
officer, employee or agent in connection with a proceeding (or part thereof)
initiated by such person unless such proceeding (or part thereof) was authorized
or consented to by the Board.
ARTICLE XIV
Interested Directors
SECTION 14.1. Interested Directors; Quorum. No contract or
transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any other corporation, partnership,
association, or other organization in which one or more of its directors or
officers are directors or officers, or have a financial interest, shall be void
or voidable solely for this reason, or solely because the director or officer is
present at or participates in the meeting of the Board or committee thereof
which authorizes the contract or transaction, or solely because his or their
votes are counted for such purpose, if: (1) the material facts as to such
person's relationship or interest and as to the contract or transaction are
disclosed or are known to the Board or the committee, and the Board or committee
in good faith authorizes the contract or transaction by the affirmative votes of
a majority of the disinterested directors, even though the disinterested
directors be less than a quorum; or (2) the material facts as to such person's
relationship or interest and as to the contract or transaction are disclosed or
are known to the stockholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the stockholders;
or (3) the contract or transaction is fair as to the Corporation as of the time
it is authorized, approved or ratified, by the Board, a committee thereof, or
the stockholders. Common or interested directors may be counted in determining
the presence of a quorum at a meeting of the Board or of a committee which
authorizes the contract or transaction.
