Attached files
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8-K - FORM 8-K - CIT GROUP INC | y02702e8vk.htm |
EX-2.2 - EX-2.2 - CIT GROUP INC | y02702exv2w2.htm |
EX-3.1 - EX-3.1 - CIT GROUP INC | y02702exv3w1.htm |
EX-2.1 - EX-2.1 - CIT GROUP INC | y02702exv2w1.htm |
EX-99.1 - EX-99.1 - CIT GROUP INC | y02702exv99w1.htm |
Exhibit 3.2
AMENDED AND RESTATED BY-LAWS
As Amended Through December 8, 2009
ARTICLE I
OFFICES
OFFICES
Section 1.01. Registered Office. The registered office of CIT Group Inc. (the Corporation)
in the State of Delaware shall be in the City of Wilmington, County of New Castle, State of
Delaware.
Section 1.02. Other Offices. The Corporation may also have one or more offices at such other
places, either within or without the State of Delaware, as the board of directors of the
Corporation (the Board of Directors) may from time to time determine or as the business of the
Corporation may require.
Section 1.03. Location of Books and Records. The books and records of the Corporation may be
kept (subject to the provisions of the laws of the State of Delaware) at any place, either within
or without the State of Delaware, as from time to time may be determined by the Board of Directors.
ARTICLE II
STOCKHOLDERS
STOCKHOLDERS
Section 2.01. Place of Meetings. Meetings of the stockholders for the election of directors
or for any other purpose shall be held at such time and place, either within or without the State
of Delaware, as shall be designated from time to time by the Board of Directors and stated in the
notice of the meeting or in a duly executed waiver of notice thereof.
Section 2.02. Annual Meetings. The annual meeting of stockholders shall be held on such date
and at such time as shall be designated from time to time by the Board of Directors and stated in
the notice of the meeting, at which meeting the stockholders shall elect by a plurality vote a
Board of Directors, and transact such other business as may properly be brought before the meeting.
Written notice of the annual meeting of stockholders stating the place, date and hour of the
meeting shall be given to each stockholder entitled to vote at such meeting not less than ten nor
more than sixty days before the date of the meeting. Any previously scheduled annual meeting of
stockholders may be postponed by resolution of the Board of Directors upon public notice given on
or prior to the date previously scheduled for such meeting.
Section 2.03. Special Meetings. Unless otherwise prescribed by law or by the Certificate of
Incorporation of the Corporation (including any certificates of designation with respect to any of
the Corporations Preferred Stock (Preferred Stock), the
Certificate of Incorporation), special meetings of stockholders of the Corporation may be
called at any by (i) the Chairman of the Board of Directors or secretary of the Corporation at the
request in writing of stockholders holding at least 25% of the voting power of the issued and
outstanding common stock of the Corporation entitled to vote generally for the election of
directors or (ii) by the Board of Directors in its discretion. Such a written request of
stockholders shall state the purpose or purposes of the proposed meeting.
Except as otherwise required by law or by the Certificate of Incorporation, no business shall be
transacted at any special meeting of stockholders other than the items of business stated in the
notice of meeting.
Section 2.04. Notice of Meetings. A notice of meeting, stating the place, day and hour of
the meeting and, in the case of special meetings, the purpose or purposes for which such special
meeting is called, shall be prepared and delivered by the Corporation not less than ten days nor
more than sixty days before the date of the meeting, either personally, or by mail, or to the
extent and in the manner permitted by applicable law.
Section 2.05. Quorum and Adjournment. Except as otherwise provided by law or by the
Certificate of Incorporation, the holders of a majority of the voting power of the outstanding
shares of the Corporation entitled to vote generally in the election of directors (the Voting
Stock), represented in person or by proxy, shall constitute a quorum at a meeting of stockholders,
except that when specified business is to be voted on by a class or series voting as a class, the
holders of a majority of the voting power of the shares of such class or series shall constitute a
quorum for the transaction of such business. The Chairman of the Board or the holders of a
majority of the voting power of the shares of Voting Stock so represented may adjourn the meeting
from time to time, whether or not there is a quorum (or, in the case of specified business to be
voted on by a class or series, the Chairman of the Board or the holders of a majority of the voting
power of the shares of such class or series so represented may adjourn the meeting with respect to
such specified business). No notice of the time and place of adjourned meetings need be given
except as required by law. The stockholders present at a duly organized meeting may continue to
transact business until adjournment, notwithstanding the withdrawal of enough stockholders to leave
less than a quorum.
Section 2.06. Notice of Stockholder Business and Nominations.
(a) Nature of Business at Meetings of Stockholders. Only such business (other
than nominations for election to the Board of Directors, which must comply with the
provisions of Section 2.06(b)) may be transacted at an Annual Meeting of
Stockholders as is either (a) specified in the notice of meeting (or any supplement
thereto) given by or at the direction of the Board of Directors (or any duly
authorized committee thereof), (b) otherwise properly brought before the Annual
Meeting by or at the direction of the Board of Directors (or any duly authorized
committee thereof), or (c) otherwise properly brought before the Annual
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Meeting by any stockholder of the Corporation (i) who is a stockholder of record on
the date of the giving of the notice provided for in this Section 2.06(a) and on
the record date for the determination of stockholders entitled to notice of and to
vote at such Annual Meeting and (ii) who complies with the notice procedures set
forth in this Section 2.06(a).
In addition to any other applicable requirements, for business to be properly brought before an
Annual Meeting by a stockholder, such stockholder must have given timely notice thereof in proper
written form to the Secretary of the Corporation.
To be timely, a stockholders notice to the Secretary must be delivered to or be mailed and
received at the principal executive offices of the Corporation not less than ninety (90) days nor
more than one hundred and twenty (120) days prior to the anniversary date of the immediately
preceding Annual Meeting of Stockholders; provided, however, that in the event that the Annual
Meeting is called for a date that is not within twenty-five (25) days before or after such
anniversary date, notice by the stockholder in order to be timely must be so received not later
than the close of business on the tenth (10th) day following the day on which such notice of the
date of the Annual Meeting was mailed or such public disclosure of the date of the Annual Meeting
was made, whichever first occurs. In no event shall the adjournment or postponement of an Annual
Meeting, or the public announcement of such an adjournment or postponement, commence a new time
period (or extend any time period) for the giving of a stockholders notice as described above.
To be in proper written form, a stockholders notice to the Secretary must set forth the following
information:
(a) as to each matter such stockholder proposes to bring before the Annual Meeting,
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, and
(b) as to the stockholder giving notice and the beneficial owner, if any, on whose
behalf the proposal is being made, (i) the name and address of such person, (ii)
(A) the class or series and number of all shares of stock of the Corporation which
are owned beneficially or of record by such person and any affiliates or associates
of such person, (B) the name of each nominee holder of shares of all stock of the
Corporation owned beneficially but not of record by such person or any affiliates
or associates of such person, and the number of such shares of stock of the
Corporation held by each such nominee holder, (C) whether and the extent to which
any derivative instrument, swap, option, warrant, short interest, hedge or profit
interest or other transaction has been entered into by or on behalf of such person,
or any affiliates or associates of such person, with respect to stock of the
Corporation and (D) whether and the extent to which any other transaction,
agreement, arrangement or understanding (including any short position or any
borrowing or lending of shares of stock of the Corporation) has been
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made by or on behalf of such person, or any affiliates or associates of such
person, the effect or intent of any of the foregoing being to mitigate loss to, or
to manage risk or benefit of stock price changes for, such person, or any
affiliates or associates of such person, or to increase or decrease the voting
power or pecuniary or economic interest of such person, or any affiliates or
associates of such person, with respect to stock of the Corporation; (iii) a
description of all agreements, arrangements, or understandings (whether written or
oral) between or among such person, or any affiliates or associates of such person,
and any other person or persons (including their names) in connection with the
proposal of such business and any material interest of such person or any
affiliates or associates of such person, in such business, including any
anticipated benefit therefrom to such person, or any affiliates or associates of
such person, (iv) a representation that the stockholder giving notice intends to
appear in person or by proxy at the Annual Meeting to bring such business before
the meeting; and (v) any other information relating to such person that would be
required to be disclosed in a proxy statement or other filing required to be made
in connection with the solicitation of proxies by such person with respect to the
proposed business to be brought by such person before the Annual Meeting pursuant
to Section 14 of the Securities Exchange Act of 1934, as amended (the Exchange
Act), and the rules and regulations promulgated thereunder.
A stockholder providing notice of business proposed to be brought before an Annual Meeting shall
further update and supplement such notice, if necessary, so that the information provided or
required to be provided in such notice pursuant to this Section 2.06(a) shall be true and correct
as of the record date for determining the stockholders entitled to receive notice of the Annual
Meeting and such update and supplement shall be delivered to or be mailed and received by the
Secretary at the principal executive offices of the Corporation not later than five (5) business
days after the record date for determining the stockholders entitled to receive notice of the
Annual Meeting.
No business shall be conducted at the Annual Meeting of Stockholders except business brought before
the Annual Meeting in accordance with the procedures set forth in this Section 2.06(a); provided,
however, that, once business has been properly brought before the Annual Meeting in accordance with
such procedures, nothing in this Section 2.06(a) shall be deemed to preclude discussion by any
stockholder of any such business. If the chairman of an Annual Meeting determines that business
was not properly brought before the Annual Meeting in accordance with the foregoing procedures, the
chairman shall declare to the meeting that the business was not properly brought before the meeting
and such business shall not be transacted.
Nothing contained in this Section 2.06(a) shall be deemed to affect any rights of stockholders to
request inclusion of proposals in the Corporations proxy statement pursuant to Rule 14a-8 under
the Exchange Act (or any successor provision of law).
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(b) Nomination of Directors.
Only persons who are nominated in accordance with the following procedures shall be
eligible for election as directors of the Corporation, except as may be otherwise
provided in the Certificate of Incorporation with respect to the right of holders
of preferred stock of the Corporation to nominate and elect a specified number of
directors in certain circumstances. Nominations of persons for election to the
Board of Directors may be made at any Annual Meeting of Stockholders, or at any
Special Meeting of Stockholders called for the purpose of electing directors, (a)
by or at the direction of the Board of Directors (or any duly authorized committee
thereof) or (b) by any stockholder of the Corporation (i) who is a stockholder of
record on the date of the giving of the notice provided for in this Section 2.06(b)
and on the record date for the determination of stockholders entitled to notice of
and to vote at such Annual Meeting or Special Meeting and (ii) who complies with
the notice procedures set forth in this Section 2.06(b).
In addition to any other applicable requirements, for a nomination to be made by a stockholder,
such stockholder must have given timely notice thereof in proper written form to the Secretary of
the Corporation..
To be timely, a stockholders notice to the Secretary must be delivered to or be mailed and
received at the principal executive offices of the Corporation (a) in the case of an Annual
Meeting, not less than ninety (90) days nor more than one hundred and twenty (120) days prior to
the anniversary date of the immediately preceding Annual Meeting of Stockholders; provided,
however, that in the event that the Annual Meeting is called for a date that is not within
twenty-five (25) days before or after such anniversary date, notice by the stockholder in order to
be timely must be so received not later than the close of business on the tenth (10th) day
following the day on which such notice of the date of the Annual Meeting was mailed or such public
disclosure of the date of the Annual Meeting was made, whichever first occurs; and (b) in the case
of a Special Meeting of Stockholders called for the purpose of electing directors, not later than
the close of business on the tenth (10th) day following the day on which notice of the date of the
Special Meeting was mailed or public disclosure of the date of the Special Meeting was made,
whichever first occurs.
In no event shall the adjournment or postponement of an Annual Meeting or a Special Meeting called
for the purpose of electing directors, or the public announcement of such an adjournment or
postponement, commence a new time period (or extend any time period) for the giving of a
stockholders notice as described above.
To be in proper written form, a stockholders notice to the Secretary must set forth the following
information:
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(a) as to each person whom the stockholder proposes to nominate for election as a
director (i) the name, age, business address and residence address of such person,
(ii) the principal occupation or employment of such person, (iii) (A) the class or
series and number of all shares of stock of the Corporation which are owned
beneficially or of record by such person and any affiliates or associates of such
person, (B) the name of each nominee holder of shares of all stock of the
Corporation owned beneficially but not of record by such person or any affiliates
or associates of such person, and the number of such shares of stock of the
Corporation held by each such nominee holder, (C) whether and the extent to which
any derivative instrument, swap, option, warrant, short interest, hedge or profit
interest or other transaction has been entered into by or on behalf of such person,
or any affiliates or associates of such person, with respect to stock of the
Corporation and (D) whether and the extent to which any other transaction,
agreement, arrangement or understanding (including any short position or any
borrowing or lending of shares of stock of the Corporation) has been made by or on
behalf of such person, or any affiliates or associates of such person, the effect
or intent of any of the foregoing being to mitigate loss to, or to manage risk or
benefit of stock price changes for, such person, or any affiliates or associates of
such person, or to increase or decrease the voting power or pecuniary or economic
interest of such person, or any affiliates or associates of such person, with
respect to stock of the Corporation; and (iv) any other information relating to
such person that would be required to be disclosed in a proxy statement or other
filings required to be made in connection with solicitations of proxies for
election of directors pursuant to Section 14 of the Exchange Act, and the rules and
regulations promulgated thereunder; and
(b) as to the stockholder giving the notice, and the beneficial owner, if any, on
whose behalf the nomination is being made, (i) the name and record address of such
person; (ii) (A) the class or series and number of all shares of stock of the
Corporation which are owned beneficially or of record by such person and any
affiliates or associates of such person, (B) the name of each nominee holder of
shares of the Corporation owned beneficially but not of record by such person or
any affiliates or associates of such person, and the number of shares of stock of
the Corporation held by each such nominee holder, (C) whether and the extent to
which any derivative instrument, swap, option, warrant, short interest, hedge or
profit interest or other transaction has been entered into by or on behalf of such
person, or any affiliates or associates of such person, with respect to stock of
the Corporation and (D) whether and the extent to which any other transaction,
agreement, arrangement or understanding (including any short position or any
borrowing or lending of shares of stock of the Corporation) has been made by or on
behalf of such person, or any affiliates or associates of such person, the effect
or intent of any of the foregoing being to mitigate loss to,
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or to manage risk or benefit of stock price changes for, such person, or any
affiliates or associates of such person, or to increase or decrease the voting
power or pecuniary or economic interest of such person, or any affiliates or
associates of such person, with respect to stock of the Corporation; (iii) a
description of all agreements, arrangements, or understandings (whether written or
oral) between such person, or any affiliates or associates of such person, and any
proposed nominee or any other person or persons (including their names) pursuant to
which the nomination(s) are being made by such person, and any material interest of
such person, or any affiliates or associates of such person, in such nomination,
including any anticipated benefit therefrom to such person, or any affiliates or
associates of such person; (iv) a representation that the stockholder giving notice
intends to appear in person or by proxy at the Annual Meeting or Special Meeting to
nominate the persons named in its notice; and (v) any other information relating to
such person that would be required to be disclosed in a proxy statement or other
filings required to be made in connection with the solicitation of proxies for
election of directors pursuant to Section 14 of the Exchange Act and the rules and
regulations promulgated thereunder.
Such notice must be accompanied by a written consent of each proposed nominee to being named as a
nominee and to serve as a director if elected.
A stockholder providing notice of any nomination proposed to be made at an Annual Meeting or
Special Meeting shall further update and supplement such notice, if necessary, so that the
information provided or required to be provided in such notice pursuant to this Section 2.06(b)
shall be true and correct as of the record date for determining the stockholders entitled to
receive notice of the Annual Meeting or Special Meeting, and such update and supplement shall be
delivered to or be mailed and received by the Secretary at the principal executive offices of the
Corporation not later than five (5) business days after the record date for determining the
stockholders entitled to receive notice of such Annual Meeting or Special Meeting.
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 2.06(b). If the Chairman of the meeting
determines that a nomination was not made in accordance with the foregoing procedures, the Chairman
shall declare to the meeting that the nomination was defective and such defective nomination shall
be disregarded.
(c) General. For purposes of this Section 2.06, public announcement shall mean
disclosure in a press release reported by the Dow Jones News Service, Associated
Press or comparable national news service or in a document publicly filed by the
Corporation with the Securities and Exchange Commission pursuant to Section 13, 14
or 15(d) of the Exchange Act.
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Section 2.07. Chairman and Secretary of the Meeting.
Meetings of the stockholders shall be presided over by the Chairman of the Board or the Chief
Executive Officer, or if neither the Chairman nor the Chief Executive Officer is present, any
officer designated by the Chairman of the Board or the Chief Executive Officer to act as chairman,
or if the Chairman and Chief Executive Officer are not present and neither the Chairman nor the
Chief Executive Officer has designated a chairman, by a chairman to be chosen at the meeting. The
Secretary of the Corporation, or in his absence, any person appointed by the chairman of the
meeting, shall act as secretary of the meeting and shall keep the minutes thereof. The order of
business at all meetings of the stockholders and the procedure at the meeting, including such
regulation of the manner of voting and the conduct of discussion, shall be as determined by the
chairman of the meeting.
Section 2.08. Voting Rights. At any meeting of stockholders, every stockholder entitled to
vote may vote in person or by proxy authorized by an instrument in writing or by a transmission
permitted by law filed in accordance with the procedure established for the meeting, but no proxy
shall be voted after three years from its date, unless such proxy provides for a longer period.
Every proxy shall be executed in writing by the stockholder or by his or her authorized
representative, or otherwise as provided under the General Corporation Law.
Section 2.09. Record Date. For the purpose of determining the stockholders entitled to
notice of or to vote at any meeting of stockholders or any adjournment thereof or for the purpose
of determining stockholders entitled to receive payment of any dividend or other distribution or
the allotment of any rights, or for the purpose of any other action, the Board of Directors may fix
a record date, which record date shall not precede the date upon which the resolution fixing the
record date is adopted by the Board, and which record date shall not be more than sixty (60) nor
less than ten (10) days before the date of any such meeting, shall not be more than ten (10) days
after the date on which the Board of Directors, by resolution, fixes a record date for any such
consent in writing, and shall not be more than sixty (60) days prior to any other action.
Section 2.10. List of Stockholders. For a period of at least ten (10) days before every
meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting
arranged in alphabetical order for each class of stock, and showing their addresses and their
record holdings as of the record date shall be open for examination by any stockholder, for any
purpose germane to the meeting, during ordinary business hours, at a place within the city where
the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not
so specified, at the place where the meeting is to be held. The list also shall 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. This list shall presumptively determine the identity of the
stockholders entitled to vote at the meeting and the number of shares held by each of them.
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Section 2.11. Inspectors. The Board of Directors may, and to the extent required by law
shall, in advance of any meeting of stockholders, appoint one or more inspectors to act at the
meeting, decide upon the qualification of voters, certify the number of shares represented at the
meeting, count the votes, decide the results and make a certified, written report thereof. The
Board of Directors may designate one or more persons as alternate inspectors to replace any
inspector who fails to act. If no inspector or alternate is able to act at a meeting of
stockholders, the chairman of the meeting may, and to the extent required by law shall, appoint one
or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his
or her duties, shall take and sign an oath faithfully to execute the duties of inspector with
strict impartiality and according to the best of his or her ability.
ARTICLE III
DIRECTORS
DIRECTORS
Section 3.01. General Powers. The business and affairs of the Corporation shall be managed
by or under the direction of its Board of Directors. In addition to the powers and authorities by
these By-Laws expressly conferred upon them, the Board of Directors may exercise all such powers of
the Corporation and do all such lawful acts and things as are not by law or by the Certificate of
Incorporation or these By-Laws required to be exercised or done by the stockholders.
Section 3.02. Number, Term of Office and Voting Requirements. Subject to the rights of the
holders of any Preferred Stock to elect directors under any specified circumstances, the entire
Board of Directors shall consist of not less than three (3) nor more than fifteen (15) members, the
exact number of which shall be fixed from time to time by resolution adopted by the affirmative
vote of a majority of the entire Board of Directors. A nominee for director shall be elected to
the Board of Directors if the votes cast for such nominees election exceed the votes cast
against such nominees election; provided, however, that directors shall be elected by a
plurality of the votes cast at any meeting of stockholders for which (i) the Secretary of the
Corporation receives a notice that a stockholder has nominated a person for election to the Board
of Directors in compliance with the advance notice requirements for stockholder nominees for
director set forth in Article II, Section 2.06(a)(2) of these Bylaws and (ii) such nomination has
not been withdrawn by such stockholder on or before the tenth day before the Corporation first
mails its notice of meeting for such meeting to the stockholders. If directors are to be elected
by a plurality of the votes cast, stockholders shall not be permitted to vote against a nominee.
Votes cast shall not include abstentions with respect to the election of directors.
Subject to his or her earlier death, resignation or removal as provided in Sections 3.04 or 3.05,
each director shall hold office until the annual meeting of the stockholders next ensuing after his
or her election and until his or her successor is elected and shall have qualified. Directors need
not be stockholders.
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Section 3.03. Quorum. At all meetings of the Board of Directors, a majority of the entire
Board of Directors shall constitute a quorum for the transaction of business. The act of the
directors present at any meeting at which there is a quorum shall be the act of the Board of
Directors, except as otherwise provided in the Delaware General Corporation Law, the Certificate of
Incorporation, or these Bylaws. If a quorum shall not be present at any meeting of the Board of
Directors, a majority of the directors present thereat may adjourn the meeting from time to time
without further notice other than announcement at the meeting. If permitted by applicable law, the
directors present at a duly authorized meeting may continue to transact business until adjournment,
notwithstanding the withdrawal of enough directors to leave less than a quorum.
Section 3.04. Resignation. Any director may resign at any time by giving written notice of
his or her resignation to the Corporation. A resignation shall take effect at the time specified
therein or, if the time when it shall become effective shall not be specified therein, immediately
upon its receipt, and, unless otherwise specified therein, the acceptance of a resignation shall
not be necessary to make it effective.
Section 3.05. Removal. Subject to any rights of holders of Preferred Stock, any director may
be removed from office, with or without cause, by the holders of 66 2/3% of the voting power of the
outstanding shares of Voting Stock, voting together as one class.
Section 3.06. Vacancies. Subject to the rights of the holders of any series of Preferred
Stock to elect additional directors under specified circumstances, vacancies resulting from death,
resignation, retirement, disqualification, removal from office or other cause, and newly created
directorships resulting from any increase in the authorized number of directors, may be filled only
by the affirmative vote of a majority of the remaining directors, though less than a quorum of the
Board of Directors, or the sole remaining director, and directors so chosen shall hold office for a
term expiring at the next annual meeting of stockholders and until their successors shall have been
duly elected and qualified, subject to their prior death, resignation, retirement disqualification
or removal from office. No decrease in the number of authorized directors constituting the Board
of Directors shall shorten the term of any incumbent director.
Section 3.07. Meetings.
(a) Meetings of the Board of Directors shall be held at such place within or
without the State of Delaware as may from time to time be fixed by resolution of
the Board or as may be specified in the call of any meeting. In the absence of any
such designation, the meetings shall be held at the principal executive offices of
the Corporation. Regular meetings of the Board of Directors shall be held six times
each year on a bi-monthly basis and special meetings may be held at any time upon
the call of the Chairman of the Board or the Chief Executive Officer or the
President or, at the request in writing of a majority of the directors, by the
Secretary.
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(b) A meeting of the Board of Directors may be held without notice immediately
after or before the annual meeting of stockholders at the same place at which such
meeting was held or as soon as practicable after the annual meeting of stockholders
on such date and at such time and place as the Board of Directors determines from
time to time. For all other meetings of the Board of Directors, the Secretary or an
Assistant Secretary shall give notice to each director of the time and place of the
meeting by (a) mailing such notice by United States mail not later than the tenth
(10th) day preceding the day on which such meeting is to be held, (b) sending such
notice via courier not later than the fourth (4th) business day preceding the day
on which such meeting is to be held or (c) sending such notice by facsimile or
electronic mail transmission or other form of electronic communication or
delivering such notice personally or by telephone, in each case, not later than
during the second (2nd) day immediately preceding the day on which such meeting is
to be held. Notice of any meeting need not be given to any director who shall
submit, either before or after the time stated therein, a signed waiver of notice
or who shall attend the meeting, other than for the express purpose of objecting at
the beginning thereof to the transaction of any business because the meeting is not
lawfully called or convened. Notice of an adjourned meeting, including the place,
date and time of the new meeting, shall be given to all directors not present at
the time of the adjournment, and also to the other directors unless the place, date
and time of the new meeting are announced at the meeting at the time at which the
adjournment is taken.
(c) The Chairman of the Board shall preside at all meetings of the Board of
Directors at which he shall be present. In his or her absence, the Lead Director
shall preside at all meetings of the Board of Directors at which he or she shall be
present and in the absence of the Lead Director, the Board of Directors shall
choose a chairman of each meeting who shall preside thereat. Section 3.08.
Dividends. To the extent permitted by law, the Board of Directors shall have full
power and discretion, subject to the provisions of the Certificate of Incorporation
and the terms of any other corporate document or instrument binding upon the
Corporation, to determine what, if any, dividends or distributions shall be
declared and paid or made.
Section 3.09. Committees. (a) The Corporation shall have four standing committees: (i) the
audit committee; (ii) the compensation committee; (iii) the nominating and governance committee;
and (iv) the risk management committee. (b) Each committee shall be governed by a charter approved
by the Board of Directors.
Section 3.10. Additional Committees. The Board of Directors may in its discretion, by
resolution passed by the affirmative vote of a majority of the entire Board of Directors, designate
such other committees, which, to the extent permitted by law and
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conferred by the resolutions appointing them, shall have and may exercise the powers of the
Board of Directors in the management of the business and affairs of the Corporation. A majority of
any such committee may determine its action and fix the time and place of its meetings, unless the
Board of Directors shall otherwise provide. The Board of Directors shall have power at any time to
dissolve any such committee formed by it.
Section 3.11. Committee Membership. Subject to any other provisions herein or in any
applicable charter (including the Audit Committee Charter and the Compensation and Governance
Committee Charter), the Board of Directors shall determine the number and the identity of the
directors who shall belong to each committee.
Section 3.12. Rules and Procedures. (a) Each committee may fix its own rules and procedures
and shall meet at such times and places as may be provided by such rules, by resolution of the
committee or by call of the chairman of the committee. Notice of meetings of each committee, other
than of regular meetings provided for by its rules or resolutions, shall be given to committee
members. At all meetings of such committee, a majority of its members, but not less than two,
shall constitute a quorum for the transaction of business. The act of the committee members present
at any meeting at which there is a quorum shall be the act of such committee. Only the Board of
Directors shall have the power to fill vacancies in any committee. All action taken at any meeting
of a committee shall be recorded in minutes of the meeting and each committee shall deliver such
minutes to the Secretary of the Corporation to be filed with the books and records of the
Corporation. (b) The Board of Directors may designate one or more directors as alternate members of
any committee, who may replace any absent or disqualified member or members at any meeting of the
committee. In addition, in the absence or disqualification of a member of a committee, if no
alternate member has been designated by the Board of Directors, the member or members present at
any meeting and not disqualified from voting, whether or not they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the meeting in the place of
the absent or disqualified member. (c) Members of the Board of Directors or any committee thereof
may participate in a meeting of the Board of Directors or committee, as the case may be, 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 the meeting. (d) Any action required or permitted to be taken at any meeting of the
Board of Directors or of any committee may be taken without a meeting if all members of the Board
of Directors or committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board of Directors or committee.
Section 3.13. Application of Article. Whenever any provision of any other document relating
to any committee of the Corporation named therein shall be in conflict with any provision of this
Article III, the provisions of this Article III shall govern, except that if such other document
shall have been approved by a vote of the Board of Directors, the provisions of such other document
shall govern, and except that the
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provisions of the Audit Committee Charter and the provisions of the Compensation and
Governance Committee Charter shall govern.
Section 3.14. Compensation. Each director who is not an employee or officer of the
Corporation or its subsidiaries, in consideration of his or her serving as such, shall be entitled
to receive from the Corporation such compensation for such periods or such fees for attendance at
meetings of the Board of Directors or of any committee, or both, as the Board of Directors or the
Nominating and Governance Committee shall from time to time determine. The Board of Directors or
the Nominating and Governance Committee may provide that the Corporation shall reimburse each
director or member of a committee for any reasonable expenses incurred by him or her on account of
his or her attendance at any such meeting. Nothing herein contained shall be construed to preclude
any director from serving the Corporation or any of its subsidiaries or affiliates in any other
capacity and receiving compensation therefor.
Section 3.15. Entire Board of Directors. As used in these By-Laws, the term entire Board of
Directors means the total number of directors which the Corporation would have if there were no
vacancies in the Board of Directors.
ARTICLE IV
OFFICERS
OFFICERS
Section 4.01. Number. The officers of the Corporation shall include a Chairman of the Board,
a Chief Executive Officer, a Secretary, a Chief Financial Officer, a Chief Compliance Officer, a
Chief Risk Officer, a Treasurer, a Controller, a General Counsel and such other officers as may be
appointed in accordance with the provisions of Section 4.03. Any number of offices may be held by
the same person.
Section 4.02. Election, Term of Office and Qualifications. Each officer specifically
designated in Section 4.01 shall be chosen by the Board of Directors within sixty (60) days after
each annual election of directors, and shall hold his or her office until a successor shall have
been chosen and qualified or until his or her earlier death or until he or she shall resign or
shall have been removed in the manner provided in Section 4.04. The Chairman of the Board and the
Chief Executive Officer shall be directors. No other officer need be a director.
Section 4.03. Other Officers. The Board of Directors from time to time may choose other
officers or agents, including, but not limited to, one or more Vice Chairmen, a Chief Operating
Officer, one or more Vice Presidents, one or more Assistant Vice Presidents, one or more Assistant
Secretaries, one or more Assistant Treasurers, and one or more Assistant Controllers, each of whom
shall hold office for such period, have such authority and perform such duties as are provided in
these By-Laws or as the Board of Directors from time to time may determine. The Chairman of the
Board, the President or the Chief Executive Officer may appoint any such other officers or agents,
other than a
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Chief Operating Officer, fix their term of office, and prescribe their respective authorities
and duties.
Section 4.04. Removal. Any officer may be removed either with or without cause by the vote
of a majority of the directors; provided that any officer who reports to either the Chief Executive
Officer or President or to some other officer who in turn reports to the Chief Executive Officer or
the President may also be removed by action of the Chief Executive Officer or the President or such
other officer, as the case may be.
Section 4.05. Resignations. Any officer may resign at any time by giving written notice of
such resignation to the Board of Directors, the Chairman of the Board, the President, the Chief
Executive Officer or the Chief Operating Officer. Unless otherwise specified therein, such
resignation shall take effect upon receipt thereof by the Board of Directors or by any such officer
and the acceptance of a resignation shall not be necessary to make it effective.
Section 4.06. Vacancies. A vacancy in any office because of death, resignation, removal,
disqualification or any other cause may be filled for the unexpired portion of the term in the
manner prescribed by these By-Laws for the regular election or appointment to such office.
Section 4.07. The Chairman of the Board. The Chairman of the Board shall preside at meetings
of the Board of Directors at which he or she is present, and shall give counsel and advice to the
Board of Directors and the officers of the Corporation on all subjects touching the welfare of the
Corporation and the conduct of its business. He or she shall perform such other duties as the Board
of Directors may from time to time determine. The Chairman shall be a member of the Board of
Directors. The Chairman shall have the power to sign all certificates, contracts, obligations and
other instruments of the Corporation.
Section 4.08. Chief Executive Officer. The Chief Executive Officer shall be the chief
executive officer of the Corporation and, subject to the overall direction and control of the Board
of Directors, shall have general charge and control of the business and affairs of the Corporation.
In the event of the death, absence, unavailability or disability of the Chairman of the Board or
the President, the Chief Executive Officer shall exercise all the powers and discharge all the
duties of the Chairman. The Chief Executive Officer shall do and perform all such other duties and
may exercise such other powers as from time to time may be assigned to him or her by these By-Laws
or by the Board of Directors. The Chief Executive Officer shall have the power to sign all
certificates, contracts, obligations and other instruments of the Corporation.
Section 4.09. The Chief Operating Officer. In the event the Board of Directors shall choose
a Chief Operating Officer, the Chief Operating Officer shall be the chief operating officer of the
Corporation responsible for directing, administering and coordinating the business operations of
the Corporation in accordance with policies, goals and objectives established by the Board of
Directors. The Chief Operating Officer shall
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generally assist the Chief Executive Officer and perform such other duties as the Board of
Directors or the Chief Executive Officer shall prescribe. The Chief Operating Officer shall have
the power to sign all certificates, contracts, obligations and other instruments of the
Corporation.
Section 4.10. The Vice Presidents and Assistant Vice Presidents. The Vice Presidents and
Assistant Vice Presidents shall perform such duties and may exercise such powers as from time to
time may be assigned to him or her by these By-Laws or by the Board of Directors, the Chairman, a
Vice Chairman of the Board, the President, the Chief Executive Officer or the Chief Operating
Officer. The Board of Directors, the Chairman of the Board, the President, the Chief Executive
Officer or the Chief Operating Officer may designate one or more Vice Presidents as Executive Vice
Presidents or Senior Vice Presidents. In the event of the death, absence, unavailability or
disability of the Chairman of the Board, the President, the Chief Executive Officer or the Chief
Operating Officer, the Board of Directors may, in its discretion, designate one or more Vice
Presidents who shall, for the time being, act as Chairman of the Board, President, Chief Executive
Officer or Chief Operating Officer; and when so acting, such Vice Presidents shall have all of the
powers and discharge all of the duties of the Chairman of the Board, the President, the Chief
Executive Officer or the Chief Operating Officer, except as otherwise provided in Section 3.05
hereof. Each Vice President who has been designated an Executive Vice President or Senior Vice
President shall, except where by law the signature of the President is required, possess the same
power as the President to sign all certificates, contracts, obligations and other instruments of
the Corporation.
Section 4.11. The Secretary and the Assistant Secretaries. The Secretary shall:
(1) Attend meetings of the stockholders and the Board of Directors, keep the
minutes of such meetings and cause the same to be recorded in books provided for
that purpose;
(2) Prepare, or cause to be prepared, and submit to the Inspectors of election at
each meeting of the stockholders a certified list, in alphabetical order, of the
names of the stockholders entitled to vote at such meeting, together with the class
and number of shares of stock held by each;
(3) Provide that all notices are duly given in accordance with the provisions of
these By-Laws or as required by statute;
(4) Be custodian of the records and minutes of the Corporation, the Board of
Directors and any committees thereof, and of the seal of the Corporation; see that
the seal is affixed, if necessary, to all stock certificates prior to their
issuance and to all documents the execution of which on behalf of the Corporation
under its seal shall have been duly authorized and attest the seal when so affixed;
15
(5) Provide that all books, reports, statements, certificates and other documents
and records required by law to be kept or filed are properly kept or filed; and
(6) In general, perform all duties and have all powers incident to the office of
Secretary and perform such other duties and have such other powers as from time to
time may be assigned to him or her by these By-Laws or by the Board of Directors.
At the request of the Secretary, or in his or her absence or disability, any Assistant Secretary
shall perform any of the duties of the Secretary and, when so acting, shall have all the powers of,
and be subject to all the restrictions upon, the Secretary. Except where by law the signature of
the Secretary is required, each of the Assistant Secretaries shall possess the same power as the
Secretary to sign certificates, contracts, obligations and other instruments of the Corporation,
and to affix the seal of the Corporation to such instruments and attest the same.
Section 4.12. Chief Financial Officer. The Chief Financial Officer shall, subject to the
control of the Board of Directors, keep and maintain, or cause to be kept and maintained, adequate
and correct books and records of accounts of the properties and business transactions of the
Corporation, including accounts of its assets, liabilities, receipts, disbursements, gains, losses,
capital, retained earnings and shares. The books of account shall at all reasonable times be open
to inspection by any director. The Chief Financial Officer shall be empowered, from time to time,
to require from the officers or agents of the Corporation reports or statements giving such
information as he or she may desire with respect to any and all financial transactions of the
Corporation. The Chief Financial Officer shall deposit all moneys and other valuables in the name
and the credit of the Corporation with such depositaries as may be designated by the Board of
Directors. The Chief Financial Officer shall disburse the funds of the Corporation as may be
ordered by the Board of Directors, shall render to the President and directors, whenever they
request it, an account of all of his or her transactions as Chief Financial Officer and of the
financial condition of the Corporation and shall have other powers and perform such other duties as
may be prescribed by the Board of Directors, the President or the Chief Executive Officer, or these
By-Laws. The Chief Financial Officer shall have the power to sign all certificates, contracts,
obligations and other instruments of the Corporation.
Section 4.13. The Treasurer and the Assistant Treasurers.
(a) The Treasurer shall, subject to the control of the Board of Directors and
except as such powers and duties are otherwise vested in the Chief Financial
Officer (if such position shall be held by a different person), have the care and
custody of the funds including the borrowing thereof, the securities, receipts and
disbursements of the Corporation; cause all moneys and other valuable effects to be
deposited in the name and to the credit of the Corporation, in such banks or trust
companies or with such bankers of other depositaries as shall be selected by the
Board of Directors or Audit Committee, or pursuant to authority conferred by the
Board of
16
Directors or Audit Committee; cause the funds of the Corporation to be disbursed by
checks or drafts upon the authorized depositaries of the Corporation; cause to be
taken and preserved paper vouchers for all moneys disbursed; render to the Chairman
of the Board, the President, the Chief Executive Officer, the Chief Financial
Officer, the Chief Operating Officer, the Board of Directors or the Audit
Committee, whenever requested, an account of his or her transactions as Treasurer;
in general, perform all duties and have all powers incident to the office of
Treasurer and perform such other duties and have such other powers as from time to
time may be assigned to him or her by these By-Laws or by the Board of Directors.
The Treasurer shall have the power to sign all certificates, contracts, obligations
and other instruments of the Corporation.
(b) At the request of the Treasurer, or in his or her absence or disability, the
Assistant Treasurer, or in case there shall be more than one Assistant Treasurer,
the Assistant Treasurer designated by the Board of Directors, the Chairman of the
Board, the President, the Chief Executive Officer, the Chief Financial Officer or
the Chief Operating Officer, shall perform any of the duties of the Treasurer and,
when so acting, shall have all the powers of, and be subject to all the
restrictions upon, the Treasurer. Except where by law the signature of the
Treasurer is required, each of the Assistant Treasurers shall possess the same
power as the Treasurer to sign all certificates, contracts, obligations and other
instruments of the Corporation.
Section 4.14. The Controller and the Assistant Controllers.
(a) The Controller shall cause to be kept correct books of accounts of all the
business transactions of the Corporation, shall see that adequate audits thereof
are currently and regularly made, shall examine and certify the accounts of the
Corporation, shall render to the Board of Directors, the Audit Committee, the
Chairman of the Board, the President, the Chief Executive Officer, the Chief
Financial Officer or the Chief Operating Officer, whenever requested, an account of
the financial condition of the Corporation, and shall report to the Board of
Directors, to the Audit Committee or to such officers as the Board of Directors may
require. He or she shall perform such other duties and have such other powers as
from time to time may be assigned to him or her by the Board of Directors.
(b) At the request of the Controller, or in his or her absence or disability, the
Assistant Controller, or in case there shall be more than one Assistant Controller,
the Assistant Controller designated by the Board of Directors or by the Chairman of
the Board, the President, the Chief Executive Officer or the Chief Operating
Officer, shall perform any of the duties of the Controller and, when so acting,
shall have all the powers of, and be subject to all the restrictions upon, the
Controller.
17
Section 4.15. General Counsel. The General Counsel shall be the chief legal officer of the
Corporation and shall have responsibility for the general supervision of all matters of a legal
nature concerning the Corporation. He or she shall perform all such duties commonly incident to his
or her office or as properly required of him or her by the Chairman of the Board of Directors or
the Chief Executive Officer. The General Counsel shall have the power to sign certificates,
contracts, opinions and other documents of or on behalf of the Corporation.
Section 4.16. Voting Shares in Other Corporations. Unless otherwise directed by the Board of
Directors, shares in other corporations which are held by the Corporation shall be represented and
voted only by the Chairman of the Board of Directors, the Chief Executive Officer, the President or
a proxy or proxies appointed by any of them.
Section 4.17. Contracts. Any officer having the power to sign certificates, contracts,
obligations and other instruments of the Corporation may delegate such power to any other officer
or employee of the Corporation, provided that the officer having delegated such power shall be
accountable for the actions of such other officer or employee.
ARTICLE V
CERTIFICATES OF STOCK
CERTIFICATES OF STOCK
Section 5.01. Form, Transfer. The shares of the Corporation shall be represented by
certificates or shall be uncertificated. Each registered holder of shares, upon request to the
Corporation, shall be provided with a certificate of stock representing the number of shares owned
by such holder. The certificates of stock of the Corporation shall be in the form or forms from
time to time approved by the Board of Directors. Transfers of stock shall be made upon the books of
the Corporation: (1) upon presentation of the certificates by the registered holder in person or by
duly authorized attorney, or upon presentation of proper evidence of succession, assignment or
authority to transfer the stock, and upon surrender of the appropriate certificate(s), or (2) in
the case of uncertificated shares, upon receipt of proper transfer instructions from the registered
owner of such uncertificated shares, or from a duly authorized attorney or from an individual
presenting proper evidence of succession, assignment or authority to transfer the stock.
Section 5.02. Signatures. The certificates of stock shall be signed in the name of the
Corporation by the Chairman of the Board, the Chief Executive Officer, the President, any Vice
Chairman or any Vice President and by the Secretary or the Treasurer or an Assistant Secretary or
an Assistant Treasurer (except that where any such certificate is countersigned either (a) by a
transfer agent other than the Corporation or its employee or (b) by a registrar other than the
Corporation or its employee, any other signature on any such certificate may be a facsimile) and
shall be countersigned and registered in such a manner, if any, as the Board of Directors may by
resolution prescribe. In case any officer, transfer agent or registrar who shall have signed, or
whose facsimile signature or signatures shall have been used on any such certificate or
certificates shall cease to be
18
such officer, transfer agent or registrar of the Corporation or these By-Laws shall be amended
to eliminate his or her office before such certificate or certificates shall have been delivered by
the Corporation, such certificate or certificates may nevertheless be issued and delivered as
though the person or persons who signed such certificate or certificates, or whose facsimile
signature or signatures shall have been used thereon, had not ceased to be such officer or officers
of the Corporation or such office had not been eliminated, and such issuance and delivery shall
constitute adoption thereof by the Corporation.
Section 5.03. Lost Certificates. The Board of Directors or any officer of the Corporation to
whom the Board of Directors has delegated authority may authorize any transfer agent of the
Corporation to issue, and any registrar of the Corporation to register, at any time and from time
to time unless otherwise directed, a new certificate or certificates of stock in the place of a
certificate or certificates theretofore issued by the Corporation, alleged to have been lost or
destroyed, upon receipt by the transfer agent of evidence of such loss or destruction, which may be
the affidavit of the applicant; a bond indemnifying the Corporation and any transfer agent and
registrar of the class of stock involved against claims that may be made against it or them on
account of the lost or destroyed certificate or the issuance of a new certificate, of such kind and
in such amount as the Board of Directors shall have authorized the transfer agent to accept
generally or as the Board of Directors or an authorized officer shall approve in particular cases;
and any other documents or instruments that the Board of Directors or an authorized officer may
require from time to time to protect adequately the interest of the Corporation. A new certificate
may be issued without requiring any bond when, in the judgment of the directors, it is proper to do
so.
Section 5.04. Holder of Record. The Corporation shall be entitled to treat the holder of
record of any share or shares of stock as the holder in fact thereof and accordingly shall not be
bound to recognize any equitable or other claim to or interest in such share on the part of any
other person whether or not it shall have express or other notice thereof, save as expressly
provided by the laws of the State of Delaware.
ARTICLE VI
CHECKS, NOTES, ETC.
CHECKS, NOTES, ETC.
All checks and drafts on the Corporations bank accounts and all bills of exchange and
promissory notes, and all acceptances, obligations, bonds and other orders or instruments for the
payment of money, shall be signed by such officer or officers, employee or employees, or agent or
agents, as shall be thereunto authorized from time to time by the Board of Directors. The Board of
Directors may, in its discretion, also provide for the countersignature or registration of any or
all such orders, instruments or obligations for the payment of money.
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ARTICLE VII
FISCAL YEAR
FISCAL YEAR
The fiscal year of the Corporation shall be as specified by the Board of Directors.
ARTICLE VIII
CORPORATE SEAL
CORPORATE SEAL
The corporate seal shall be in such form as shall from time to time be approved by the Board
of Directors. If and when so authorized by the Board of Directors, a duplicate of the seal may be
kept and used by the Secretary or Treasurer or by any Assistant Secretary or Assistant Treasurer.
In lieu of the corporate seal, when so authorized by the Board of Directors, a facsimile of such
corporate seal may be impressed or affixed or reproduced.
ARTICLE IX
INDEMNIFICATION OF DIRECTORS, OFFICERS AND EMPLOYEES
INDEMNIFICATION OF DIRECTORS, OFFICERS AND EMPLOYEES
Section 9.01. General. Subject to Section 9.03, 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 (other than an
action by or in the right of the Corporation) by reason of the fact that he or she is or was a
director, officer, employee or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys fees, if such attorneys
fees are incurred in accordance with the policies and procedures established by the Company from
time-to-time), judgments, fines and amounts paid in settlement actually and reasonably incurred by
him or her in connection with such action, suit or proceeding if he or she 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, with respect to any criminal action or proceeding, had no reasonable cause to
believe his or her 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 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 or her conduct was unlawful.
Section 9.02. Corporation Suit. Subject to Section 9.03, 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 or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he or she is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the
20
Corporation as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including
attorneys fees, if such attorneys fees are incurred in
accordance with the policies and procedures established by the
Company from time-to-time) actually and
reasonably incurred by him or her in connection with the defense or settlement of such action or
suit if he or she 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; except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall have been adjudged to be liable
to the Corporation unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem
proper.
Section 9.03. Authorization. Any indemnification under this Article IX (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 current or former director, officer, employee or agent is
proper in the circumstances because he or she has met the applicable standard of conduct set forth
in Section 9.01 or 9.02. Such determination shall be made, with respect to a person who is a
director or officer at the time of such determination, (a) by a majority vote of the directors who
were not parties to such action, suit or proceeding, even though less than a quorum, (b) by a
committee of such directors designated by majority vote of such directors, even though less than a
quorum, (c) if such a quorum is not obtainable, or, even if obtainable a quorum of disinterested
directors so directs, by independent legal counsel in a written opinion or (d) by the stockholders.
To the extent, however, that a current or former director or officer 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 or she shall be indemnified against
expenses (including attorneys fees) actually and reasonably incurred by him or her in connection
therewith, without the necessity of authorization in the specific case.
Section 9.04. Expenses. Expenses (including attorneys fees) incurred by an officer or
director of the Corporation or by a former director or officer of the Corporation in defending any
civil, criminal, administrative or investigative action, suit or proceeding for which
indemnification is available pursuant to this Article IX shall be paid by the Corporation in
advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking
by or on behalf of such 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 IX. Such expenses (including attorneys fees) incurred by other employees and agents
of the Corporation or by a person who is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint venture, trust or
other enterprise may be so paid upon such terms and conditions, if any, as the Board of Directors
or the CEO and General Counsel deem appropriate.
21
Section 9.05. Non-Exclusive Rights. The indemnification and advancement of expenses provided
by or granted pursuant to this Article IX shall not be deemed exclusive of any other rights to
which those seeking indemnification or advancement of expenses may be entitled under the
certificate of incorporation, these by-laws, or any agreement, contract, 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, it being the policy of the Corporation that
indemnification of the persons specified in 9.01 and 9.02 shall be made to the fullest extent
permitted by law. The provisions of this Article IX shall not be deemed to preclude the
indemnification of any person, who is not specified in Section 9.01 or 9.02 but whom the
Corporation has the power or obligation to indemnify under the provisions of the General
Corporation Law, or otherwise.
Section 9.06. 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 or other enterprise against any liability asserted
against him or her and incurred by him or her in any such capacity, or arising out of his or her
status as such, whether or not the Corporation would have the power or the obligation to indemnify
him or her against such liability under the provisions of this Article IX.
Section 9.07. Definitions. For purposes of this Article IX, 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
or other enterprise, shall stand in the same position under the provision of this Article IX with
respect to the resulting or surviving corporation as he or she would have with respect to such
constituent corporation if its separate existence had continued. For purposes of this Article IX,
references to other enterprises shall include employee benefit plans; 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 involves 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 he or she
reasonably believed to be in the interest of the participants and beneficiaries of an employee
benefit plan shall be deemed to have acted in a manner not opposed to the best interests of the
Corporation as referred to in this Article IX. For purposes of this Article IX, 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 persons conduct was unlawful, if such
persons action is based on the records or books of account of the
22
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 other expert selected with reasonable care by the Corporation or another
enterprise; provided, that the foregoing 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 this Article IX.
Section 9.08. Continuing Nature. The indemnification and advancement of expenses provided
by, or granted pursuant to, this Article IX 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, administrators and personal representatives of
such a person.
Section 9.09. Limitation. Notwithstanding anything contained in this Article IX to the
contrary, except for proceedings to enforce rights to indemnification, 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 of Directors of the Corporation.
Section 9.10 Indemnification by a Court. Notwithstanding any contrary determination in the
specific case under Section 9.3, and notwithstanding the absence of any determination thereunder,
any director or officer may apply to the Court of Chancery of the State of Delaware or any other
court of competent jurisdiction in the State of Delaware for indemnification to the extent
otherwise permissible under Section 9.01 or 9.02. The basis of such indemnification by a court
shall be a determination by such court that indemnification of the director or officer is proper in
the circumstances because such person has met the applicable standard of conduct set forth in
Section 9.01 or Section 9.02, as the case may be. Neither a contrary determination in the specific
case under Section 9.03 nor the absence of any determination thereunder shall be a defense to such
application or create a presumption that the director or officer seeking indemnification has not
met any applicable standard of conduct. Notice of any application for indemnification pursuant to
this Section 9.10 shall be given to the Corporation promptly upon the filing of such application.
If successful, in whole or in part, the director or officer seeking indemnification shall also be
entitled to be paid the expense of prosecuting such application.
ARTICLE X
RELIANCE ON RECORDS AND REPORTS
RELIANCE ON RECORDS AND REPORTS
Each director, officer or member of any committee designated by, or by authority of, the Board
of Directors, shall in the performance of his or her duties, be fully protected in relying in good
faith upon the books of account or other records of the Corporation or any of its subsidiaries, or
upon reports made to the Corporation or any of its subsidiaries
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by any official of the Corporation or of a subsidiary or by an independent certified public
accountant or by an appraiser selected with reasonable care by the Board of Directors or by any
such committee.
ARTICLE XI
AMENDMENTS
AMENDMENTS
The Board of Directors shall have the express power, without a vote of stockholders, to adopt
any By-Law, and to amend, alter or repeal these By-Laws, except to the extent that these By-Laws or
the Certificate of Incorporation otherwise provide. The Board of Directors may exercise such power
upon the affirmative vote of a majority of the entire Board of Directors; provided, however, that
notwithstanding the foregoing, the Board of Directors may alter, amend or repeal By-Laws in
conflict with Section 3.05 of these By-Laws or this Article 11 of these By-Laws only by a
resolution adopted by 66 2/3% vote of the entire Board of Directors. Stockholders may not adopt
any By-Law, nor amend, alter or repeal these By-Laws of the Corporation, except upon the
affirmative vote of the holders of at least 66 2/3% of the voting power of the outstanding shares
of Voting Stock, voting together as a single class. These By-Laws may be altered, amended or
repealed at any meeting of the Board of Directors, provided that notice of such proposed
alteration, amendment or repeal is contained in the notice of such meeting of the Board of
Directors.
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