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8-K - FORM 8-K - METLIFE INC | y81732e8vk.htm |
Exhibit 3.1
METLIFE, INC.
AMENDED AND RESTATED BY LAWS
AMENDED AND RESTATED BY LAWS
Effective January 26, 2010
METLIFE, INC.
BY LAWS
TABLE OF CONTENTS
SECTION | PAGE | |||
ARTICLE I |
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STOCKHOLDERS |
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1.01. Annual Meetings |
1 | |||
1.02. Special Meetings |
1 | |||
1.03. Notice of Meetings; Waiver |
1 | |||
1.04. Quorum and Required Vote |
2 | |||
1.05. Voting Rights |
2 | |||
1.06. Voting by Ballot |
2 | |||
1.07. Adjournment |
2 | |||
1.08. Proxies |
3 | |||
1.09. Presiding Officer and Secretary of the Meeting |
3 | |||
1.10. Notice of Stockholder Business and Nominations |
4 | |||
1.11. Inspectors of Elections |
7 | |||
1.12. Opening and Closing of Polls |
8 | |||
1.13. Confidential Voting |
8 | |||
1.14. No Stockholder Action by Written Consent |
8 | |||
ARTICLE II |
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BOARD OF DIRECTORS |
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2.01. General Powers |
9 | |||
2.02. Number of Directors |
9 | |||
2.03. Director Elections |
9 | |||
2.04. Annual and Regular Meetings |
10 | |||
2.05. Special Meetings; Notice |
11 | |||
2.06. Quorum; Voting |
11 | |||
2.07. Adjournment |
11 | |||
2.08. Action Without a Meeting |
11 | |||
2.09. Regulations; Manner of Acting |
11 | |||
2.10. Action by Telephonic Communications |
12 | |||
2.11. Resignations |
12 | |||
2.12. Removal of Directors |
12 | |||
2.13. Vacancies and Newly Created Directorships |
12 | |||
2.14. Compensation |
13 | |||
2.15. Reliance on Accounts and Reports, etc. |
13 |
SECTION | PAGE | |||
ARTICLE III |
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BOARD COMMITTEES |
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3.01. How Constituted, Committee Powers |
13 | |||
3.02. Quorum and Manner of Acting |
13 | |||
3.03. Action by Telephonic Communications |
14 | |||
3.04. Resignations |
14 | |||
3.05. Removal |
14 | |||
3.06. Vacancies |
14 | |||
ARTICLE IV |
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OFFICERS |
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4.01. Number |
14 | |||
4.02. Election |
14 | |||
4.03. Salaries |
15 | |||
4.04. Removal and Resignation; Vacancies |
15 | |||
4.05. Authority and Duties of Officers |
15 | |||
4.06. The Chairman |
15 | |||
4.07. The Chief Executive Officer |
15 | |||
4.08. The President |
15 | |||
4.09. Absence or Disability of the Chief Executive Officer |
16 | |||
4.10. Vice Presidents |
16 | |||
4.11. The Secretary |
16 | |||
4.12. The Chief Financial Officer |
16 | |||
4.13. The Treasurer |
16 | |||
4.14. The Controller |
17 | |||
4.15. The General Counsel |
17 | |||
4.16. Additional Officers |
17 | |||
4.17. Security |
17 | |||
ARTICLE V |
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CAPITAL STOCK |
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5.01. Certificates of Stock, Uncertificated Shares |
17 | |||
5.02. Signatures; Facsimile |
18 | |||
5.03. Lost, Stolen or Destroyed Certificates |
18 | |||
5.04. Transfer of Stock |
18 | |||
5.05. Record Date |
18 | |||
5.06. Registered Stockholders |
19 | |||
5.07. Transfer Agent and Registrar |
19 | |||
ARTICLE VI |
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INDEMNIFICATION |
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6.01. Nature of Indemnity |
19 |
SECTION | PAGE | |||
6.02. Determination that Indemnification is Proper |
20 | |||
6.03. Advance Payment of Expenses |
20 | |||
6.04. Procedure for Indemnification of Directors and Officers |
21 | |||
6.05. Survival; Preservation of Other Rights |
21 | |||
6.06. Insurance |
22 | |||
6.07. Severability |
22 | |||
ARTICLE VII |
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OFFICES |
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7.01. Registered Office |
22 | |||
7.02. Other Offices |
22 | |||
ARTICLE VIII |
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GENERAL PROVISIONS |
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8.01. Dividends |
23 | |||
8.02. Reserves |
23 | |||
8.03. Execution of Instruments |
23 | |||
8.04. Corporate Indebtedness |
23 | |||
8.05. Deposits |
24 | |||
8.06. Checks |
24 | |||
8.07. Sale, Transfer, etc. of Securities |
24 | |||
8.08. Voting as Stockholder |
24 | |||
8.09. Fiscal Year |
24 | |||
8.10. Seal |
25 | |||
ARTICLE IX |
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EMERGENCY BOARD OF DIRECTORS |
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9.01. Emergency Board of Directors |
25 | |||
ARTICLE X |
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AMENDMENT OF BY-LAWS |
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10.01. Amendment |
26 | |||
ARTICLE XI |
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CONSTRUCTION |
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11.01. Construction |
26 |
METLIFE, INC.
AMENDED AND RESTATED BY LAWS
Effective January 26, 2010
ARTICLE I
STOCKHOLDERS
STOCKHOLDERS
Section 1.01. Annual Meetings. The annual meeting of the stockholders of the Corporation
for the election of Directors and for the transaction of such other business as properly may come
before such meeting shall be held at such place, either within or without the State of Delaware,
and at such date and at such time, as may be fixed from time to time by resolution of the Board of
Directors and set forth in the notice or waiver of notice of the meeting.
Section 1.02. Special Meetings. Special meetings of the stockholders may be called at any
time by the Lead Director or the Chief Executive Officer (or, in the event of the Chief Executive
Officers absence or disability, by the President or any Director who is also an officer
(hereafter, an Officer Director)). A special meeting shall be called by the Chief Executive
Officer (or, in the event of the Chief Executive Officers absence or disability, by the President
or any Officer Director) or by the Secretary pursuant to a resolution approved by a majority of the
entire Board of Directors. Such special meetings of the stockholders shall be held at such places,
within or without the State of Delaware, as shall be specified in the respective notices or waivers
of notice thereof. Any power of the stockholders of the Corporation to call a special meeting is
specifically denied.
Section 1.03. Notice of Meetings; Waiver. The Secretary or any Assistant Secretary shall
cause written notice of the place, date and hour of each meeting of the stockholders and, in the
case of a special meeting, the purpose or purposes for which such meeting is called, to be given
personally or by mail, or in the case of stockholders who have consented to such delivery, by
electronic mail or other means of electronic transmission, not less than ten nor more than sixty
days prior to the meeting, to each stockholder of record entitled to vote at such meeting. If such
notice is mailed, it shall be deemed to have been given to a stockholder when deposited in the
United States mail, postage prepaid, directed to the stockholder at such stockholders address as
it appears on the record of stockholders of the Corporation. If such notice is given by electronic
transmission, it will be deemed given: (a) if by electronic mail, when directed to an electronic
mail address at which the stockholder has consented to receive notice; or (b) if by posting on an
electronic network with separate notice to the stockholder of such specific posting, upon the later
of (i) such posting and (ii) the giving of such separate notice; or (c) if by other means of
electronic transmission,
at the time specified in the applicable provisions of the General Corporation Law of the State of
Delaware. Such further notice of meetings of stockholders shall be given as may be required by
applicable law.
A written waiver of any notice of any annual or special meeting signed by the person entitled
thereto, shall be deemed equivalent to notice. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the stockholders needs to be specified in a written
waiver of notice. Attendance of a stockholder at a meeting of stockholders shall constitute a
waiver of notice of such meeting, except when the stockholder attends a meeting for the express
purpose of objecting, at the beginning of the meeting, to the transaction of any business on the
ground that the meeting is not lawfully called or convened.
Section 1.04. Quorum and Required Vote. Except as otherwise required by law or by the
Certificate of Incorporation, the presence in person or by proxy of the holders of record of
one-third of the shares entitled to vote at a meeting of stockholders shall constitute a quorum for
the transaction of business at such meeting. Except as otherwise required by law or by the
Certificate of Incorporation, these By-Laws or the rules or regulations of any stock exchange
applicable to the Corporation, the vote of a majority (or, in the case of the election of
Directors, a plurality) of the shares represented in person or by proxy and voting on the subject
matter at any meeting at which a quorum is present shall be sufficient for the transaction of any
business at such meeting.
Section 1.05. Voting Rights. Subject to the rights of the holders of any class or series
of Preferred Stock, every holder of record of shares entitled to vote at a meeting of stockholders
shall be entitled to one vote for each share outstanding in such stockholders name on the books of
the Corporation at the close of business on the date fixed pursuant to the provisions of Section
5.05 hereof as the record date for the determination of the stockholders who shall be entitled to
notice of and to vote at such meeting.
Section 1.06. Voting by Ballot. No vote of the stockholders need be taken by written
ballot unless otherwise required by law. Any vote not required to be taken by ballot may be
conducted in any manner approved by the presiding officer at the meeting at which such vote is
taken.
Section 1.07. Adjournment. If a quorum is not present at any meeting of the stockholders,
the presiding officer shall have the power to adjourn any such meeting from time to time until a
quorum is present. Notice of any adjourned meeting of the stockholders of the Corporation need not
be given if the place, date and hour thereof are announced at the meeting at which the adjournment
is taken, provided, however, that if the adjournment is for more than thirty days, or if after the
adjournment a new record date for the adjourned meeting is fixed pursuant to Section 5.05 of these
By-Laws, a notice of the adjourned meeting,
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conforming to the requirements of Section 1.03 hereof, shall be given to each stockholder of record
entitled to vote at such meeting. At any adjourned meeting at which a quorum is present, any
business may be transacted that might have been transacted on the original date of the meeting.
Section 1.08. Proxies. Any stockholder entitled to vote at any meeting of the
stockholders may authorize another person or persons to vote at any such meeting for such
stockholder by proxy. A stockholder may authorize a valid proxy by executing a written instrument
signed by such stockholder, or such stockholders authorized officer, director, employee or agent,
or by causing such signature to be affixed to such writing by any reasonable means including, but
not limited to, by facsimile signature, or by transmitting or authorizing the transmission of a
telegram, cablegram, data and voice telephonic communications, computer network, e-mail or other
means of electronic transmission to the person designated as the holder of the proxy, a proxy
solicitation firm, a proxy support service organization or a like authorized agent. No such proxy
shall be voted or acted upon after the expiration of three years from the date of such proxy,
unless such proxy provides for a longer period. Every proxy shall be revocable at the pleasure of
the stockholder executing it, except in those cases where applicable law provides that a proxy
shall be irrevocable. A stockholder may revoke any proxy which is not irrevocable by attending the
meeting and voting in person or by filing an instrument in writing revoking the proxy or by filing
another duly executed proxy bearing a later date with the Secretary. Proxies by telegram,
cablegram, data and voice telephonic communications, computer network, e-mail or other electronic
transmission must either set forth or be submitted with information from which it can be determined
that such electronic transmission was authorized by the stockholder. If it is determined that such
electronic transmission is valid, the inspectors shall specify the information upon which they
relied. Any copy, facsimile telecommunication or other reliable reproduction of a writing or
transmission created pursuant to this section may be substituted or used in lieu of the original
writing or transmission for any and all purposes for which the original writing or transmission
could be used, provided that such copy, facsimile telecommunication or other reproduction shall be
a complete reproduction of the entire original writing or transmission.
Section 1.09. Presiding Officer and Secretary of the Meeting.
(a) At every meeting of stockholders the presiding officer shall be the Chairman or, in the event
of the Chairmans absence or disability, the Lead Director, or in the event of the Lead Directors
absence or disability, the President, or in the event of the Presidents absence or disability, any
officer designated by the Chief Executive Officer, or in the event of the Chief Executive Officers
absence or the failure of the Chief Executive Officer to designate an officer for such purpose, any
officer chosen by resolution of the Board of Directors. The order of business and all other
matters of procedure at every meeting of stockholders may be determined by the presiding officer.
The Secretary, or in the event of the
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Secretarys absence or disability, any Assistant Secretary designated by the presiding officer, if
any, or if there be no Assistant Secretary, in the absence of the Secretary, an appointee of the
presiding officer, shall act as Secretary of the meeting.
(b) Conduct of Meetings. The Board of Directors may adopt by resolution such rules and
regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to
the extent inconsistent with any such rules and regulations as adopted by the Board of Directors,
the presiding officer shall have the right and authority to convene and to adjourn the meeting, to
prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of
such presiding officer, are appropriate for the proper conduct of the meeting. Such rules,
regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding
officer, may include, but are not limited to, the following: (i) the establishment of an agenda or
order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting
and the safety of those present; (iii) limitations on attendance at or participation in the meeting
to stockholders of record of the Corporation, their duly authorized and constituted proxies or such
other persons as the presiding officer shall determine; (iv) restrictions on entry to the meeting
after the time fixed for the commencement thereof; and (v) limitations on the time allotted to
questions or comments by participants. Meetings of stockholders shall not be required to be held
in accordance with the rules of parliamentary procedure.
Section 1.10. Notice of Stockholder Business and Nominations.
(a) Annual Meetings of Stockholders.
(i) Nominations of persons for election to the Board of Directors of the Corporation and the
proposal of business to be considered by the stockholders at an annual meeting of stockholders may
be made only (A) by or at the direction of the Board of Directors or the Chief Executive Officer,
or (B) by any stockholder of the Corporation who is entitled to vote at the meeting, who complies
with the notice procedures set forth in this Section 1.10(a) and who is a stockholder of record at
the time such notice is delivered to the Secretary of the Corporation.
(ii) For nominations or other business to be properly brought before an annual meeting by a
stockholder, pursuant to clause (B) of paragraph (a)(i) of this Section 1.10, the stockholder must
have given timely notice thereof in writing to the Secretary of the Corporation and any such other
business must otherwise be a proper matter for stockholder action. To be timely, a stockholders
notice shall be delivered to the Secretary at the principal executive offices of the Corporation
not less than 120 calendar days prior to the first anniversary of the previous years annual
meeting; provided, however, that in the event that no annual meeting was held in the previous year
or the date of the annual meeting was changed by more than 30 days from the anniversary date of the
previous
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years annual meeting, notice by the stockholder must be so received by the later of 120
calendar days prior to such annual meeting or 10 calendar days following the date on which public
announcement of the date of the meeting is first made. In no event shall an adjournment or
postponement of an annual meeting (or the public announcement thereof) commence a new time period
(or extend any time period) for the giving of a stockholders notice as described in this Section
1.01(a). Such stockholders notice shall (x) be accompanied by a completed disclosure
questionnaire, the form of which shall be approved by the Directors from time to time and posted by
the Corporation on its website, and (y) set forth (A) as to each person whom the stockholder
proposes to nominate for election or reelection as a Director all information relating to such
person that is required to be disclosed in solicitations of proxies for election of Directors, or
is otherwise required, in each case pursuant to Section 14 of the Exchange Act and the rules and
regulations promulgated thereunder, including such persons written consent to being named in the
proxy statement as a nominee and to serving as a Director if elected; (B) as to any other business
that the stockholder proposes to bring before the meeting, a brief description of the business
desired to be brought before the meeting, the reasons for conducting such business at the meeting
and, in the event that such business includes a proposal to amend either the Certificate of
Incorporation or the By-Laws of the Corporation, the language of the proposed amendment; (C) any
material interest in such business of such stockholder and of any beneficial owner on whose behalf
the proposal is made and, in case of nominations, a description of all arrangements or
understandings between any stockholder and each nominee and any other persons (naming them)
pursuant to which the nominations are to be made by the stockholder; (D) satisfactory evidence that
each stockholder is a beneficial owner, or a representation that the stockholder is a holder of
record, of stock of the Corporation entitled to vote at such meeting and intends to appear in
person or by a qualified representative at the meeting to propose such business or nomination; (E)
if the stockholder intends to solicit proxies in support of such stockholders business proposal or
nomination, a representation to that effect; and (F) as to such stockholder and each other person
with whom such stockholder is acting in concert or on whose behalf such stockholder is acting in
connection with such nomination or other business (each, a Proponent) , (1) the name and address
of such Proponent; and (2) the class and number of shares of the Corporation which are owned
beneficially and of record by such Proponent. If such stockholder does not appear or send a
qualified representative to present such business proposal or nomination at such annual meeting,
the Corporation need not present such proposal or nomination for a vote at such meeting,
notwithstanding that proxies in respect of such vote may have been received by the Corporation. The
presiding officer of any annual meeting of stockholders shall refuse to permit any business
proposed or nomination made by a stockholder to be brought before such annual meeting without
compliance with the foregoing procedures or if the stockholder solicits proxies in support of such
stockholders business proposal or nomination without such stockholder having made the
representation required by clause (E) above.
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(b) Special Meetings of Stockholders.
(i) Only such business as shall have been brought before the special meeting of the
stockholders pursuant to the Corporations notice of meeting pursuant to Section 1.02 of these
By-Laws shall be conducted at such meeting.
(ii) In the event that Directors are to be elected at a special meeting of stockholders
pursuant to the Corporations notice of meeting, nominations of persons for election to the Board
of Directors may be made at such special meeting of stockholders (1) by or at the direction of the
Board of Directors or (2) by any stockholder of the Corporation who is entitled to vote at the
meeting, who complies with the notice procedures set forth in this Section 1.10 and who is a
stockholder of record at the time such notice is delivered to the Secretary of the Corporation.
Nominations by stockholders of persons for election to the Board of Directors may be made at such
special meeting of stockholders if the stockholder has delivered notice containing the information
described in paragraph (a)(ii) of this Section 1.10, including the disclosure questionnaire
described in such paragraph (a)(ii), to the Secretary at the principal executive offices of the
Corporation by the later of 150 calendar days prior to such special meeting or 10 calendar days
following the date on which public announcement of the date of the special meeting and of the
nominees to be elected at such meeting is first made. In no event shall the adjournment or
postponement of a special meeting (or the public announcement thereof) commence a new time period
(or extend any time period) for the giving of a stockholders notice as described above.
(c) General.
(i) Only persons who are nominated in accordance with the procedures set forth in this Section
1.10 shall be eligible to serve as Directors and only such business shall be conducted at a meeting
of stockholders as shall have been brought before the meeting in accordance with the procedures set
forth in this Section 1.10. Except as otherwise provided by law, the Certificate of Incorporation
or these By-Laws, the presiding officer of the meeting shall have the power and duty to determine
whether a nomination or any business proposed to be brought before the meeting was made or proposed
in accordance with the procedures set forth in this Section 1.10 and, if any proposed nomination or
business is not in compliance with this Section 1.10, to declare that such defective proposal or
nomination shall be disregarded.
(ii) Notwithstanding the foregoing provisions of this Section 1.10, a stockholder shall also
comply with all applicable requirements of the Exchange Act and the rules and regulations
thereunder with respect to the matters set forth in this Section 1.10; provided, however, that any
references in these By-Laws to the Exchange Act or any section thereof and the rules and
regulations thereunder are not intended to and shall not limit the requirements applicable to
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nominations or proposals as to any other business to be considered pursuant to Section 1.10.
Nothing in this Section 1.10 shall be deemed to affect any rights (a) of stockholders to request
inclusion of business proposals or nominations in the Corporations proxy statement to the extent
required under Rule 14a-8 under the Exchange Act, or (b) of the holders of any class or series of
preferred stock to the extent provided under any applicable preferred stock Certificate of
Designation (as defined in the Certificate of Incorporation).
Section 1.11. Inspectors of Elections.
(a) Prior to any meeting of the stockholders, the Board of Directors shall appoint one or more
persons to act as Inspectors of Elections, and may designate one or more alternate inspectors. If
no inspector or alternate is able to act, the person presiding at the meeting shall appoint one or
more inspectors to act at the meeting. Each inspector, before entering upon the discharge of the
duties of an inspector, shall take and sign an oath faithfully to execute the duties of inspector
with strict impartiality and according to the best of such inspectors ability. The inspector
shall:
(i) ascertain the number of shares outstanding and the voting power of each;
(ii) determine the shares represented at the meeting and the validity of proxies and ballots;
(iii) specify the information relied upon to determine the validity of electronic
transmissions in accordance with Section 1.08 hereof;
(iv) count all votes and ballots;
(v) determine and retain for a reasonable period a record of the disposition of any
challenges made to any determination by the inspectors;
(vi) certify such inspectors determination of the number of shares represented at the
meeting, and such inspectors count of all votes and ballots.
(b) The inspector may appoint or retain other persons or entities to assist in the performance of
the duties of inspector.
(c) When determining the shares represented and the validity of proxies and ballots, the inspector
shall be limited to an examination of the proxies, any envelopes submitted with those proxies, any
proxies provided in accordance with Section 1.08 of these By-Laws, ballots and the regular books
and records of the Corporation. The inspector may consider other reliable information for the
limited purpose of reconciling proxies and ballots submitted by or on behalf of banks, brokers or
their nominees or a similar person which represent more votes than
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the holder of a proxy is authorized by the record owner to cast or more votes than the stockholder
holds of record. If the inspector considers other reliable information as outlined in this
section, the inspector, at the time of certification pursuant to (a)(vi) of this Section 1.11,
shall specify the precise information considered, the person or persons from whom such information
was obtained, when this information was obtained, the means by which such information was obtained,
and the basis for the inspectors belief that such information is accurate and reliable.
Section 1.12. Opening and Closing of Polls. The time for the opening and the closing of
the polls for the matters to be voted upon at a stockholder meeting shall be announced at the
meeting by the presiding officer. The inspector of the election shall be prohibited from accepting
any ballots, proxies or votes or any revocations thereof or changes thereto after the closing of
the polls, unless the Delaware Court of Chancery upon application by a stockholder shall determine
otherwise.
Section 1.13. Confidential Voting.
(a) Proxies and ballots that identify the votes of specific stockholders shall be kept in
confidence by the inspectors of election unless
(i) there is an opposing solicitation with respect to the election or removal of Directors,
(ii) disclosure is required by applicable law,
(iii) a stockholder expressly requests or otherwise authorizes disclosure in relation to such
stockholders vote, or
(iv) the Corporation concludes in good faith that a bona fide dispute exists as to the
authenticity of one or more proxies, ballots or votes, or as to the accuracy of any tabulation of
such proxies, ballots or votes.
(b) The inspectors of election and any authorized agents or other persons engaged in the receipt,
count and tabulation of proxies and ballots shall be advised of this By-Law and instructed to
comply herewith.
(c) The inspectors of election shall certify, to the best of their knowledge based on due inquiry,
that proxies and ballots have been kept in confidence as required by this Section 1.13.
Section 1.14. No Stockholder Action by Written Consent. Any action required or permitted
to be taken by the stockholders of the Corporation must be effected at a duly called annual or
special meeting of the stockholders of the Corporation, and the ability of the stockholders to
consent in writing to the taking of any action is specifically denied.
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ARTICLE I
BOARD OF DIRECTORS
BOARD OF DIRECTORS
Section 2.01. General Powers. Except as may otherwise be provided by law, by the
Certificate of Incorporation or by these By-Laws, the property, affairs and business of the
Corporation shall be managed by or under the direction of the Board of Directors and the Board of
Directors may exercise all the powers of the Corporation.
Section 2.02. Number of Directors. Subject to the rights of the holders of any class or
series of preferred stock, if any, the number of Directors shall be fixed from time to time
exclusively pursuant to a resolution adopted by a majority of the entire Board of Directors, but
the Board of Directors shall at no time consist of fewer than three (3) Directors.
Section 2.03. Director Elections.
(a) Classified Board. The Directors of the Corporation, subject to the rights of the
holders of shares of any class or series of preferred stock, shall be classified with respect to
the time for which they severally hold office, into three classes, as nearly equal in number as
possible, one class (Class I) whose term expires at the 2000 annual meeting stockholders, another
class (Class II) whose term expires at the 2001 annual meeting of stockholders, and another class
(Class III) whose term expires at the 2002 annual meeting of stockholders, with each class to
hold office until its successors are elected and qualified. Except as otherwise provided in
Sections 2.12 and 2.13 of these By-Laws, at each annual meeting of stockholders of the Corporation,
and subject to the rights of the holders of shares of any class or series of preferred stock, the
successors of the class of directors whose term expires at that meeting shall be elected to hold
office for a term expiring at the annual meeting of stockholders held in the third year following
the year of their election.
(b) Majority Voting Standard in Director Elections. The Company has established a
majority voting standard in uncontested elections of Directors. In an uncontested election of
Directors (i.e., an election where the only nominees are those recommended by the board of
Directors), following certification of the shareholder vote, any nominee for election as Director
who received a greater number of votes withheld from his or her election than votes for his or
her election shall promptly tender his or her resignation to the Chairman of the Board. The
Chairman of the Board shall inform the Chair of the Governance Committee of such tender of
resignation and the Governance Committee shall promptly consider such resignation and recommend to
the board whether to accept the tendered resignation or reject it. In deciding upon its
recommendation, the Governance committee shall consider all relevant factors including, without
9
limitation, the length of service and qualifications of the Director who has tendered his or her
resignation and the Directors contributions to the Corporation and the Board.
(i) The Board shall act on the Governance Committees recommendation no later than 90 days
following certification of the shareholder vote. The Board shall consider the factors considered
by the Governance Committee and such additional information and factors the Board deems relevant.
The Corporation shall promptly publicly disclose the Boards decision and, if applicable, the
reasons for rejecting the tendered resignation, in a Report on Form 8-K filed with the Securities
Exchange Commission.
(ii) If a Directors resignation is accepted by the board, the Governance Committee shall
recommend to the board whether to fill the vacancy created by such resignation or to reduce the
size of the board. Any Director who tenders his or her resignation as provided above shall not
participate in the Governance Committees or the Boards consideration of whether or not to accept
his or her tendered resignation.
(iii) If a majority of the members of the Governance Committee were required to tender their
resignations as described above, the Directors whom the Board has affirmatively determined to be
independent in accordance with applicable stock exchange listing standards and who were not
required to tender their resignations shall appoint a special committee of the Board to consider
the tendered resignations and whether to accept or reject them.
(iv) This provision shall be summarized or set forth in its entirety in each proxy statement
relating to an election of Directors of the Corporation.
Section 2.04. Annual and Regular Meetings. The annual meeting of the Board of Directors
for the purpose of electing officers and for the transaction of such other business as may come
before the meeting shall be held as soon as practicable following adjournment of the annual meeting
of the stockholders. Notice of such annual meeting of the Board of Directors need not be given.
The Board of Directors from time to time may by resolution provide for the holding of regular
meetings and fix the place (which may be within or without the State of Delaware) and the date of
such meetings. Notice of regular meetings need not be given; provided, however, that if the Board
of Directors shall fix or change the time or place of any regular meeting, notice of such action
shall be mailed promptly, or sent by telephone, including a voice messaging system or other system
or technology designed to record and communicate messages, facsimile, electronic mail or other
electronic means, to each Director who shall not have been present at the meeting at which such
action was taken, addressed or transmitted to him or her at such Directors usual place of
business, or shall be delivered or transmitted to him or her personally. Notice of such action
need not be given to any Director who attends the first regular meeting after such action is
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taken without protesting the lack of notice to him or her, prior to or at the commencement of such
meeting, or to any Director who submits a signed waiver of notice, whether before or after such
meeting.
Section 2.05. Special Meetings; Notice. Special meetings of the Board of Directors shall
be held whenever called by the Chairman or the Chief Executive Officer (or, in the event of the
Chief Executive Officers absence or disability, by the President or any Officer Director) or by
the Secretary pursuant to a resolution approved by a majority of the entire Board of Directors, at
such place (within or without the State of Delaware), date and hour as may be specified in the
respective notices or waivers of notice of such meetings. Special meetings of the Board of
Directors may be called on twenty-four (24) hours notice, if notice is given to each Director
personally or by telephone, including a voice messaging system, or other system or technology
designed to record and communicate messages, telegraph, facsimile, electronic mail or other
electronic means, or on five (5) days notice, if notice is mailed to each Director, addressed or
transmitted to him or her at such Directors usual place of business or other designated location.
Notice of any special meeting need not be given to any Director who attends such meeting without
protesting the lack of notice to him or her, prior to or at the commencement of such meeting, or to
any Director who submits a signed waiver of notice, whether before or after such meeting, and any
business may be transacted thereat.
Section 2.06. Quorum; Voting. At all meetings of the Board of Directors, the presence of
a majority of the total number of Directors shall constitute a quorum for the transaction of
business. Except as otherwise required by law, the vote of a majority of the Directors present at
any meeting at which a quorum is present shall be the act of the Board of Directors.
Section 2.07. Adjournment. A majority of the Directors present, whether or not a quorum
is present, may adjourn any meeting of the Board of Directors to another time or place. No notice
need be given of any adjourned meeting unless the time and place of the adjourned meeting are not
announced at the time of adjournment, in which case notice conforming to the requirements of
Section 2.05 of these By-Laws shall be given to each Director.
Section 2.08. Action Without a Meeting. Any action required or permitted to be taken at
any meeting of the Board of Directors may be taken without a meeting if all members of the Board of
Directors consent thereto in writing, and such writing or writings are filed with the minutes of
proceedings of the Board of Directors.
Section 2.09. Regulations; Manner of Acting. To the extent consistent with applicable
law, the Certificate of Incorporation and these By-Laws, the Board of Directors may adopt such
rules and regulations for the conduct of meetings of the Board of Directors and for the management
of the property, affairs and business of the Corporation as the Board of Directors may deem
appropriate.
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The Directors shall act only as a Board and the individual Directors shall have no power as such.
Section 2.10 Action by Telephonic Communications. Members of the Board of Directors may
participate in any meeting of the Board of Directors by means of conference telephone or similar
communications equipment by means of which all persons participating in the meeting can hear each
other, and participation in any meeting pursuant to this provision shall constitute presence in
person at such meeting.
Section 2.11. Resignations. Any Director may resign at any time by delivering a written
notice of resignation, signed by such Director, to the Chairman or the Secretary. Unless otherwise
specified therein, and subject to Section 2.03(b) of these By-Laws, such resignation shall take
effect upon delivery.
Section 2.12. Removal of Directors. Subject to the rights of the holders of any class or
series of preferred stock, if any, to elect additional Directors under specified circumstances, any
Director may be removed at any time, but only for cause, upon the affirmative vote of the holders
of a majority of the combined voting power of the then outstanding stock of the Corporation
entitled to vote generally in the election of Directors. Any vacancy in the Board of Directors
caused by any such removal may be filled at such meeting by the stockholders entitled to vote for
the election of the Director so removed. A Director filling any such vacancy shall be of the same
class as that of the Director whose removal created such vacancy and shall hold office until such
Directors successor shall have been elected and qualified or until such Directors earlier death,
resignation or removal. If such stockholders do not fill such vacancy at such meeting, such
vacancy may be filled in the manner provided in Section 2.13 of these By-Laws.
Section 2.13. Vacancies and Newly Created Directorships. Subject to the rights of the
holders of any class or series of preferred stock, if any, to elect additional Directors under
specified circumstances, and except as provided in Section 2.12, if any vacancies shall occur in
the Board of Directors, by reason of death, resignation, removal or otherwise, or if the authorized
number of Directors shall be increased pursuant to Section 2.02 hereof, the Directors then in
office shall continue to act, and such vacancies and newly created directorships may be filled by a
majority of the Directors then in office, although less than a quorum. Any Director filling a
vacancy shall be of the same class as that of the Director whose death, resignation, removal or
other event caused the vacancy, and any Director filling a newly created directorship shall be of
the class specified by the Board of Directors at the time the newly created directorships were
created. A Director elected to fill a vacancy or a newly created directorship shall hold office
until such Directors successor has been elected and qualified or until such Directors earlier
death, resignation or removal.
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Section 2.14. Compensation. The amount, if any, which each Director shall be entitled to
receive as compensation for such Directors services as such shall be fixed from time to time by
the Board of Directors.
Section 2.15. Reliance on Accounts and Reports, etc. A Director, and any member of any
committee designated by the Board of Directors shall, in the performance of such Directors duties,
be fully protected in relying in good faith upon the records of the Corporation and upon
information, opinions, reports or statements presented to the Corporation by any of the
Corporations officers or employees, or committees designated by the Board of Directors, or by any
other person as to the matters the member reasonably believes are within such other persons
professional or expert competence and who has been selected with reasonable care by or on behalf of
the Corporation.
ARTICLE II
BOARD COMMITTEES
BOARD COMMITTEES
Section 3.01. How Constituted; Committee Powers. The Board of Directors shall designate
such Committees as may be required by applicable laws, rules, regulations and stock exchange
listing standards, including an Audit Committee, a Compensation Committee and a Governance
Committee, which Committees shall be constituted to comply with applicable requirements thereunder,
and may designate one or more additional Committees, including an Executive Committee. Each
Committee shall consist of one or more of the Directors of the Corporation. Each such Committee,
to the extent provided in any resolution or resolutions of the Board of Directors, shall have and
may exercise all the powers and authority of the Board of Directors in the management of the
business and affairs of the Corporation, and may authorize the seal of the Corporation to be
affixed to all papers which require it; provided, however, that no such Committee shall have the
power or authority in reference to the following matters: (a) approving or adopting, or
recommending to the stockholders, any action or matter expressly required by the General
Corporation Law of the State of Delaware to be submitted to stockholders for approval or (b)
adopting, amending or repealing any By-Law of the Corporation. Each Committee shall keep regular
minutes of its meetings.
Section 3.02. Quorum and Manner of Acting. Except as may be otherwise provided in any
resolution of the Board of Directors, at all meetings of any Committee the presence of members
constituting a majority of the total membership of such Committee shall constitute a quorum for the
transaction of business. The act of the majority of the members present at any meeting at which a
quorum is present shall be the act of such Committee. Any action required or permitted to be taken
at any meeting of any such Committee may be taken without a meeting, if all members of such
Committee shall consent to such action in writing and such writing or writings are filed with the
minutes of the
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proceedings of the Committee. The members of any such Committee shall act only as a Committee, and
the individual members of such Committee shall have no power as such.
Section 3.03. Action by Telephonic Communications. Members of any Committee designated by
the Board of Directors may participate in a meeting of such Committee by means of conference
telephone or similar communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting pursuant to this provision shall
constitute presence in person at such meeting.
Section 3.04. Resignations. Any member of any Committee may resign at any time by
delivering a written notice of resignation, signed by such member, to the Chairman or the
President. Unless otherwise specified therein, such resignation shall take effect upon delivery.
Section 3.05. Removal. Any member of any Committee may be removed from the position as a
member of such Committee at any time, either for or without cause, by resolution adopted by a
majority of the Board of Directors.
Section 3.06. Vacancies. If any vacancy shall occur in any Committee, by reason of death,
resignation, removal or otherwise, the remaining members shall continue to act, and any such
vacancy may be filled by the Board of Directors.
ARTICLE III
OFFICERS
OFFICERS
Section 4.01. Number. The officers of the Corporation shall be elected by the Board of
Directors and shall be a Chairman, Chief Executive Officer, President, one or more Vice Presidents,
a Chief Financial Officer, a Secretary, a Treasurer, a Controller and a General Counsel. The Board
of Directors may appoint such other officers as it may deem appropriate, provided that officers of
the rank of Vice-President and below may be appointed by the Compensation Committee. Such other
officers shall exercise such powers and perform such duties as may be determined from time to time
by the Board of Directors, Chief Executive Officer or President. Any number of offices may be held
by the same person. No officer, other than the Chairman, need be a Director of the Corporation.
Section 4.02. Election. Unless otherwise determined by the Board of Directors, the
officers of the Corporation shall be elected by the Board of Directors at the annual meeting of the
Board of Directors, and shall be elected to hold office until the next succeeding annual meeting of
the Board of Directors. In the event of the failure to elect officers at such meeting, officers
may be elected at any regular or special meeting of the Board of Directors. Officers of the rank
of Vice-President and below may be elected by the Compensation Committee. Each officer shall
14
hold office until such officers successor has been elected and qualified, or until such
officers earlier death, resignation or removal.
Section 4.03. Salaries. The salaries of all principal officers (as determined by the
Board of Directors) of the Corporation shall be fixed by the Board of Directors.
Section 4.04. Removal and Resignation; Vacancies. Any officer may be removed for or
without cause at any time by the Board of Directors. Any officer may resign at any time by
delivering a written notice of resignation, signed by such officer, to the Board of Directors or
the Chief Executive Officer. Unless otherwise specified therein, such resignation shall take
effect upon delivery. Any vacancy occurring in any office of the Corporation by death,
resignation, removal or otherwise, shall be filled by the Board of Directors.
Section 4.05. Authority and Duties of Officers. The officers of the Corporation shall
have such authority and shall exercise such powers and perform such duties as may be specified in
these By-Laws, except that in any event each officer shall exercise such powers and perform such
duties as may be required by law.
Section 4.06. The Chairman. The Directors shall elect from among the members of the Board
of Directors a Chairman of the Board. The Chairman shall have such duties and powers as set forth
in these By-Laws or as shall otherwise be conferred upon the Chairman from time to time by the
Board of Directors. The Chairman shall preside over all meetings of the Stockholders and the Board
of Directors, other than meetings of the Board of Directors held in executive session, which shall
be presided over by the Lead Director.
Section 4.07. The Chief Executive Officer. The Chief Executive Officer shall have general
control and supervision of the policies and operations of the Corporation. He or she shall manage
and administer the Corporations business and affairs and shall also perform all duties and
exercise all powers usually pertaining to the office of a chief executive officer of a corporation.
The Chief Executive Officer shall perform such other duties and have such other powers as the
Board of Directors may from time to time prescribe.
Section 4.08. The President. The President, subject to the authority of the Chief
Executive Officer (if the President is not the Chief Executive Officer), shall have primary
responsibility for, and authority with respect to, the management of the day-to-day business and
affairs of the Corporation, to the extent prescribed by the Chief Executive Officer. The President
shall perform such other duties and have such other powers as the Board of Directors or (if the
President is not the Chief Executive Officer) the Chief Executive Officer may from time to time
prescribe.
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Section 4.09. Absence or Disability of the Chief Executive Officer. In the event of the
absence of the Chief Executive Officer or in the event of the Chief Executive Officers inability
to act, the officer, if any, designated by resolution of the Board of Directors (or in the event
there is more than one such designated officer, then in the order of designation) shall perform the
duties of the Chief Executive Officer, and when so acting, shall have all the powers and be subject
to all the restrictions of the Chief Executive Officer.
Section 4.10. Vice Presidents. The Vice Presidents shall have such designations and shall
perform such other duties and have such powers as the Board of Directors, the Chief Executive
Officer or the President may from time to time prescribe.
Section 4.11. The Secretary. The Secretary shall keep or cause to be kept a record of all
the proceedings of the meetings of the stockholders and of the Board of Directors, and shall cause
all notices to be duly given in accordance with the provisions of these By-Laws and as required by
law. The Secretary shall be the custodian of the records and of the seal of the Corporation and
cause such seal (or a facsimile thereof) to be affixed to instruments when appropriate. The
Secretary shall perform, in general, all duties incident to the office of secretary and such other
duties as may be specified in these By-Laws or as may be assigned to him or her from time to time
by the Board of Directors, the Chief Executive Officer or the President.
Section 4.12. The Chief Financial Officer. The Chief Financial Officer shall be the
principal financial officer of the Corporation and shall have responsibility for the financial
affairs of the Corporation. The Chief Financial Officer shall perform such other duties and
exercise such other powers as are normally incident to the office of chief financial officer and as
may be prescribed by the Board of Directors, the Chief Executive Officer or the President.
Section 4.13. The Treasurer. The Treasurer shall have charge and supervision over and be
responsible for the moneys, securities, receipts and disbursements of the Corporation, and shall
keep or cause to be kept full and accurate records of all receipts of the Corporation, and shall
cause the moneys and other valuable effects of the Corporation to be deposited in the name and to
the credit of the Corporation. The Treasurer shall cause the moneys of the Corporation to be
disbursed by checks or drafts upon the authorized depositaries of the Corporation and cause to be
taken and preserved proper vouchers for all moneys disbursed. The Treasurer shall perform, in
general, all duties incident to the office of treasurer and such other duties as may be specified
in these By-Laws or as may be assigned to him or her from time to time by the Board of Directors,
the Chief Executive Officer, the President or the Chief Financial Officer.
Section 4.14. The Controller. The Controller shall keep or cause to be kept correct
records of the business and transactions of the Corporation. The
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Controller shall perform such other duties and exercise such other powers as are normally incident
to the office of controller and as may be prescribed by the Board of Directors, the Chief Executive
Officer or the President.
Section 4.15. The General Counsel. The General Counsel shall have responsibility for the
legal affairs of the Corporation. The General Counsel shall perform such other duties and exercise
such other powers as are normally incident to the office of general counsel and as may be
prescribed by the Board of Directors, the Chief Executive Officer or the President.
Section 4.16. Additional Officers. The Board of Directors from time to time may delegate
to any officer the power to appoint subordinate officers and to prescribe their respective rights,
terms of office, authorities and duties. Any such officer may remove any such subordinate officer
appointed by him or her, for or without cause, but such removal shall be without prejudice to the
contractual rights of such subordinate officer or agent, if any, with the Corporation.
Section 4.17. Security. The Board of Directors may require any officer, agent or employee
of the Corporation to provide security for the faithful performance of such officers, agents or
employees duties, in such amount and of such character as may be determined from time to time by
the Board of Directors.
ARTICLE V
CAPITAL STOCK
CAPITAL STOCK
Section 5.01. Certificates of Stock, Uncertificated Shares. The shares of the Corporation
may be either represented by certificates or uncertificated shares, provided that the Board of
Directors may provide by resolution or resolutions that some or all of any or all classes or series
of the stock of the Corporation shall be uncertificated shares. Any resolution of the Board of
Directors providing for uncertificated shares shall not apply to shares represented by a
certificate until such certificate is surrendered to the Corporation. Notwithstanding the adoption
of such resolution by the Board of Directors, every holder of stock represented by certificates
and, upon request, every holder of uncertificated shares shall be entitled to have a certificate
signed by, or in the name of, the Corporation, (i) by the Chief Executive Officer, the President or
a Vice President, and (ii) by the Chief Financial Officer, the Treasurer, an Assistant Treasurer,
the Secretary or an Assistant Secretary, representing the number of shares registered in
certificate form. Such certificate shall be in such form as the Board of Directors may determine,
to the extent consistent with applicable law, the Certificate of Incorporation and these By-Laws.
Section 5.02. Signatures; Facsimile. All of such signatures on the certificate referred
to in Section 5.01 of these By-Laws may be a facsimile, engraved or printed, to the extent
permitted by law. In case any officer, transfer agent or
17
registrar who has signed, or whose facsimile signature has been placed upon a certificate
representing shares of the Corporation shall have ceased to be such officer, transfer agent or
registrar before such certificate is issued, it may be issued by the Corporation with the same
effect as if he or she were such officer, transfer agent or registrar at the date of issue.
Section 5.03. Lost, Stolen or Destroyed Certificates. The Board of Directors may direct
that a new certificate be issued in place of any certificate theretofore issued by the Corporation
alleged to have been lost, stolen or destroyed, upon delivery to the Board of Directors of an
affidavit of the owner or owners of such certificate, setting forth such allegation. The Board of
Directors may require the owner of such lost, stolen or destroyed certificate, or such owners
legal representative, to give the Corporation a bond sufficient to indemnify it against any claim
that may be made against it on account of the alleged loss, theft or destruction of any such
certificate or the issuance of any such new certificate.
Section 5.04. Transfer of Stock. Upon surrender to the Corporation or the transfer agent
of the Corporation of a certificate for shares, duly endorsed or accompanied by appropriate
evidence of succession, assignment or authority to transfer, the Corporation shall issue a new
certificate to the person entitled thereto, cancel the old certificate and record the transaction
upon its books. Within a reasonable time after the transfer of uncertificated stock, the
Corporation shall send to the registered owner thereof a written notice containing the information
required to be set forth or stated on certificates pursuant to Sections 151, 156, 202(a) or 218(a)
of the General Corporation Law of the State of Delaware. Subject to the provisions of the
Certificate of Incorporation and these By-Laws, the Board of Directors may prescribe such
additional rules and regulations as it may deem appropriate relating to the issue, transfer and
registration of shares of the Corporation.
Section 5.05. Record Date.
(a) Stockholders Meetings. In order to determine the stockholders entitled to notice of
or to vote at any meeting of stockholders or any adjournment thereof, the Board of Directors may
fix, in advance, a record date, which record date shall not precede the date on which the
resolution fixing the record date is adopted by the Board of Directors, and which shall not be more
than sixty (60) nor less than ten (10) days before the date of such meeting. A determination of
stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to
any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting. If no record date is fixed, the record date for determining
stockholders for any such purpose shall be the close of business on the day next preceding the day
on which notice of the meeting is given, or, if notice is waived, at the close of business on the
day next preceding the day on which the meeting is held.
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(b) Dividends and Other Distributions. In order that the Corporation may determine the
stockholders entitled to receive payment of any dividend or other distribution or allotment of any
rights of the stockholders entitled to exercise any rights in respect of any change, conversion or
exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix a
record date, which record date shall not precede the date upon which the resolution fixing the
record date is adopted, and which record date shall be not more than sixty (60) days prior to such
action. If no record date is fixed, the record date for determining stockholders for any such
purpose shall be at the close of business on the day on which the Board of Directors adopts the
resolution relating thereto.
Section 5.06. Registered Stockholders. Prior to due surrender of a certificate for
registration of transfer, the Corporation may treat the registered owner as the person exclusively
entitled to receive dividends and other distributions, to vote, to receive notice and otherwise to
exercise all the rights and powers of the owner of the shares represented by such certificate, and
the Corporation shall not be bound to recognize any equitable or legal claim to or interest in such
shares on the part of any other person, whether or not the Corporation shall have notice of such
claim or interests. Whenever any transfer of shares shall be made for collateral security, and not
absolutely, it shall be so expressed in the entry of the transfer if, when the certificates are
presented to the Corporation for transfer or uncertificated shares are requested to be transferred,
both the transferor and transferee request the Corporation to do so.
Section 5.07. Transfer Agent and Registrar. The Board of Directors may appoint one or
more transfer agents and one or more registrars, and may require all certificates representing
shares to bear the signature of any such transfer agents or registrars.
ARTICLE VI
INDEMNIFICATION
INDEMNIFICATION
Section 6.01. Nature of Indemnity. The Corporation shall indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or completed action, suit
or proceeding (a Proceeding), whether civil, criminal, administrative or investigative, by reason
of the fact that he or she is or was or has agreed to become a director or officer of the
Corporation, or is or was serving or has agreed to serve at the request of the Corporation as a
director or officer, of another corporation, partnership, joint venture, trust or other entity, or
by reason of any action alleged to have been taken or omitted in such capacity, against expenses
(including attorneys fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him or her or on his or her behalf in connection with such action, suit or
proceeding and any appeal therefrom, 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
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respect to any criminal action or proceeding, had no reasonable cause to believe that his or her
conduct was unlawful; except that in the case of an action or suit by or in the name of the
Corporation to procure a judgment in its favor (1) such indemnification shall be limited to
expenses (including attorneys fees) actually and reasonably incurred by such person in the defense
or settlement of such action or suit, and (2) no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be liable to the
Corporation unless and only to the extent that the Delaware Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Delaware Court of Chancery or such other court
shall deem proper. Notwithstanding the foregoing, but subject to Section 6.05 of these By-Laws,
the Corporation shall not be obligated to indemnify a director or officer of the Corporation in
respect of a Proceeding (or such part thereof) instituted by such director or officer, unless such
Proceeding (or such part thereof) has been authorized by the Board of Directors.
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 6.02. Determination that Indemnification is Proper. Unless ordered by a court, no
indemnification of a present or former director or officer of the Corporation under Section 6.01
hereof (unless ordered by a court) shall be made by the Corporation if a determination is made that
indemnification of the present or former director or officer is not proper in the circumstances
because he or she has not met the applicable standard of conduct set forth in Section 6.01 hereof.
Section 6.03. Advance Payment of Expenses. Expenses (including attorneys fees) incurred
by a director or officer in defending any civil, criminal, administrative or investigative action,
suit or proceeding shall be paid by the Corporation in advance of the final disposition of such
action, suit or proceeding upon receipt of an undertaking by or on behalf of the director or
officer to repay such amount with interest, as determined by the Corporation, if it shall
ultimately be determined that such person is not entitled to be indemnified by the Corporation as
authorized in this Article. Such expenses (including attorneys fees) incurred by former directors
and officers may be so paid upon such terms and conditions, if any, as the Corporation deems
appropriate. The Board of Directors may authorize the Corporations counsel to represent such
director or officer in any action, suit or proceeding, whether or not the Corporation is a party to
such action, suit or proceeding.
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Section 6.04. Procedure for Indemnification of Directors and Officers. Any
indemnification of a director or officer of the Corporation under Section 6.01, or advance of
costs, charges and expenses to a director or officer under Section 6.04 of these By-Laws, shall be
made promptly, and in any event within thirty (30) days, upon the written request of the director
or officer. If a determination by the Corporation that the director or officer is entitled to
indemnification pursuant to this Article VI is required, and the Corporation fails to respond
within sixty (60) days to a written request for indemnity, the Corporation shall be deemed to have
approved such request. If the Corporation denies a written request for indemnity or advancement of
expenses, in whole or in part, or if payment in full pursuant to such request is not made within
thirty (30) days, the right to indemnification or advances as granted by this Article VI shall be
enforceable by the director or officer in any court of competent jurisdiction. Such persons costs
and expenses incurred in connection with successfully establishing such persons right to
indemnification or advances, in whole or in part, in any such action shall also be indemnified by
the Corporation. It shall be a defense to any such action (other than an action brought to enforce
a claim for the advance of costs, charges and expenses under Section 6.03 of these By-Laws where
the required undertaking, if any, has been tendered to the Corporation) that the claimant has not
met the standard of conduct set forth in Section 6.01 of these By-Laws, but the burden of proving
such defense shall be on the Corporation. Neither the failure of the Corporation (including its
Board of Directors, its independent legal counsel, and its stockholders) to have made a
determination prior to the commencement of such action that indemnification of the claimant is
proper in the circumstances because he or she has met the applicable standard of conduct set forth
in Section 6.01 of these By-Laws, nor the fact that there has been an actual determination by the
Corporation (including its Board of Directors, its independent legal counsel, and its stockholders)
that the claimant has not met such applicable standard of conduct, shall be a defense to the action
or create a presumption that the claimant has not met the applicable standard of conduct.
Section 6.05. Survival; Preservation of Other Rights. The foregoing indemnification and
advancement provisions shall be deemed to be a contract between the Corporation and each director
or officer who serves in any such capacity at any time while these provisions as well as the
relevant provisions of the General Corporation Law of the State of Delaware are in effect and any
repeal or modification thereof shall not affect any right or obligation then existing with respect
to any state of facts then or previously existing or any action, suit or proceeding previously or
thereafter brought or threatened based in whole or in part upon any such state of facts. Such a
contract right may not be modified retroactively without the consent of such director or officer.
The indemnification and advancement provided by this Article VI shall not be deemed exclusive of
any other rights to which those indemnified may be entitled under any by-law, agreement, vote of
stockholders or disinterested Directors or otherwise, both as to action in such persons official
capacity and as to action in
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another capacity while holding such office, and, once an event has occurred with respect to which a
Director or Officer is or may be entitled to indemnification under this Article, such entitlement
shall continue as to a person who has ceased to be a director or officer and shall inure to the
benefit of the heirs, executors and administrators of such a person.
Section 6.06. Insurance. The Corporation may purchase and maintain insurance on behalf of
any person who is or was or has agreed to become a director or officer of the Corporation, or is or
was serving at the request of the Corporation as a director or officer of another corporation,
partnership, joint venture, trust or other entity against any liability asserted against such
person and incurred by such person or on such persons behalf in any such capacity, or arising out
of such persons status as such, whether or not the Corporation would have the power to indemnify
him or her against such liability under the provisions of this Article VI; provided that such
insurance is available on acceptable terms, which determination shall be made by the Chief
Executive Officer.
Section 6.07. Severability. If this Article VI or any portion hereof shall be invalidated
on any ground by any court of competent jurisdiction, then the Corporation shall nevertheless
indemnify each director or officer as to costs, charges and expenses (including attorneys fees),
judgments, fines and amounts paid in settlement with respect to any action, suit or proceeding,
whether civil, criminal, administrative or investigative, including an action by or in the right of
the Corporation, to the fullest extent permitted by any applicable portion of this Article VI that
shall not have been invalidated and to the fullest extent permitted by applicable law.
ARTICLE VII
OFFICES
OFFICES
Section 7.01. Registered Office. The registered office of the Corporation in the State of
Delaware shall be located at Corporation Trust Center, 1209 Orange Street in the City of
Wilmington, County of New Castle.
Section 7.02. Other Offices. The Corporation may maintain offices or places of business
at such other locations within or without the State of Delaware as the Board of Directors may from
time to time determine or as the business of the Corporation may require.
ARTICLE VIII
GENERAL PROVISIONS
GENERAL PROVISIONS
Section 8.01. Dividends. Subject to any applicable provisions of law and the Certificate
of Incorporation, dividends upon the shares of the Corporation may be
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declared by the Board of Directors at any regular or special meeting of the Board of Directors and
any such dividend may be paid in cash, property or shares of the Corporations capital stock.
A member of the Board of Directors, or a member of any committee designated by the Board of
Directors shall be fully protected in relying in good faith upon the records of the Corporation and
upon such information, opinions, reports or statements presented to the Corporation by any of its
officers or employees, or committees of the Board of Directors, or by any other person as to
matters the Director reasonably believes are within such other persons professional or expert
competence and who has been selected with reasonable care by or on behalf of the Corporation, as to
the value and amount of the assets, liabilities and/or net profits of the Corporation, or any other
facts pertinent to the existence and amount of surplus or other funds from which dividends might
properly be declared and paid.
Section 8.02. Reserves. There may be set aside out of any funds of the Corporation
available for dividends such sum or sums as the Board of Directors from time to time, in its
absolute discretion, thinks proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the Corporation or for such
other purpose as the Board of Directors shall think conducive to the interests of the Corporation,
and the Board of Directors may similarly modify or abolish any such reserve.
Section 8.03. Execution of Instruments. The Chief Executive Officer, the President, any
Vice President, the Secretary, the Chief Financial Officer or the Treasurer may enter into any
contract or execute and deliver any instrument in the name and on behalf of the Corporation. The
Board of Directors or the Chief Executive Officer may authorize any other officer or agent to enter
into any contract or execute and deliver any instrument in the name and on behalf of the
Corporation. Any such authorization may be general or limited to specific contracts or
instruments.
Section 8.04. Corporate Indebtedness. No loan shall be contracted on behalf of the
Corporation, and no evidence of indebtedness shall be issued in its name, unless authorized by the
Board of Directors, the Chief Executive Officer or the Chief Financial Officer. Such authorization
may be general or confined to specific instances. Loans so authorized may be effected at any time
for the Corporation from any bank, trust company or other institution, or from any firm,
corporation or individual. All bonds, debentures, notes and other obligations or evidences of
indebtedness of the Corporation issued for such loans shall be made, executed and delivered as the
Board of Directors, the Chief Executive Officer or the Chief Financial Officer shall authorize.
When so authorized by the Board of Directors, the Chief Executive Officer or the Chief Financial
Officer, any part of or all the properties, including contract rights, assets, business or good
will of the Corporation, whether then owned or thereafter acquired, may be
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mortgaged, pledged, hypothecated or conveyed or assigned in trust as security for the payment of
such bonds, debentures, notes and other obligations or evidences of indebtedness of the
Corporation, and of the interest thereon, by instruments executed and delivered in the name of the
Corporation.
Section 8.05. Deposits. Any funds of the Corporation may be deposited from time to time
in such banks, trust companies or other depositaries as may be determined by the Board of
Directors, the Chief Executive Officer, the Treasurer or the Chief Financial Officer or by such
officers or agents as may be authorized by the Board of Directors or the Chief Executive Officer,
the Treasurer or the Chief Financial Officer to make such determination.
Section 8.06. Checks. All checks or demands for money and notes of the Corporation shall
be signed by such officer or officers or such agent or agents of the Corporation, and in such
manner, as the Board of Directors or the Chief Executive Officer from time to time may determine.
Section 8.07. Sale, Transfer, etc. of Securities. To the extent authorized by the Board
of Directors or by the Chief Executive Officer, the President, any Vice President, the Secretary,
the Chief Financial Officer or the Treasurer or any other officers designated by the Board of
Directors or the Chief Executive Officer may sell, transfer, endorse, and assign any shares of
stock, bonds or other securities owned by or held in the name of the Corporation, and may make,
execute and deliver in the name of the Corporation, under its corporate seal (if required), any
instruments that may be appropriate to effect any such sale, transfer, endorsement or assignment.
Section 8.08. Voting as Stockholder. Unless otherwise determined by resolution of the
Board of Directors, the Chief Executive Officer, the President or any Vice President shall have
full power and authority on behalf of the Corporation to attend any meeting of stockholders of any
corporation in which the Corporation may hold stock, and to act, vote (or execute proxies to vote)
and exercise in person or by proxy all other rights, powers and privileges incident to the
ownership of such stock. Such officers acting on behalf of the Corporation shall have full power
and authority to execute any instrument expressing consent to or dissent from any action of any
such corporation without a meeting. The Board of Directors may by resolution from time to time
confer such power and authority upon any other person or persons.
Section 8.09. Fiscal Year. The fiscal year of the Corporation shall commence on the first
day of January of each year (except for the Corporations first fiscal year which shall commence on
the date of incorporation) and shall terminate in each case on December 31.
Section 8.10. Seal. The seal of the Corporation shall be circular in form and shall
contain the name of the Corporation, the year of its incorporation and the
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words Corporate Seal and Delaware. The form of such seal shall be subject to alteration by the
Board of Directors. The seal may be used by causing it or a facsimile thereof to be impressed,
affixed or reproduced, or may be used in any other lawful manner.
ARTICLE IX
EMERGENCY BOARD OF DIRECTORS
EMERGENCY BOARD OF DIRECTORS
Section 9.01. Emergency Board of Directors. Notwithstanding any different provision in
the Delaware General Corporation Law, the Certificate of Incorporation of the Corporation or these
By-Laws, in the event of any emergency (herein defined as (i) resulting from an attack on the
United States or on a locality in which the Corporation conducts business or customarily holds
meetings of its Board of Directors, (ii) any nuclear, enemy or terrorist attack, or (iii) the
existence of any other catastrophe, disaster or other similar emergency condition), as a result of
which emergency a quorum of the Board of Directors cannot readily be convened for action, this
By-Law provision shall apply. All the powers and duties vested in the Board of Directors shall
vest automatically in an Emergency Board of Directors, which shall consist of all members of the
Board of Directors who are readily available and capable of acting. The Emergency Board of
Directors shall use all reasonable efforts to promptly provide notice of the change in the status
of the Board of Directors to the Securities and Exchange Commission. This Emergency Board shall
have and may exercise all of the powers of the Board of Directors in the management of the business
and affairs of the Corporation. A meeting of the Emergency Board may be called by any Director or
any member of the most senior executive management committee of the Corporation (the Executive
Group). Notice of the time and place of the meeting shall be given by or on behalf of the person
calling the meeting to only such of the Directors as it may be feasible to reach at the time and by
such means as may be feasible at the time, including by telephone, personal delivery, facsimile or
email. Such notice shall be given at such time in advance of the meeting as circumstances permit
in the judgment of the person calling the meeting. Two members in attendance shall constitute a
quorum at any meeting of the Emergency Board. The Emergency Board shall continue to be vested with
the powers and duties of the Board of Directors until such time following the emergency as a quorum
of the original members of the Board of Directors prior to such emergency can readily be convened
for action.
ARTICLE X
AMENDMENT OF BY-LAWS
AMENDMENT OF BY-LAWS
Section 10.01. Amendment. These By-Laws may be amended, altered or repealed:
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(a) by resolution adopted by a majority of the Board of Directors at any special or regular
meeting of the Board of Directors if, in the case of such special meeting only, notice of such
amendment, alteration or repeal is contained in the notice or waiver of notice of such meeting; or
(b) at any regular or special meeting of the stockholders upon the affirmative vote of the holders
of three-fourths (3/4) or more of the combined voting power of the outstanding shares of the
Corporation entitled to vote generally in the election of Directors if, in the case of such special
meeting only, notice of such amendment, alteration or repeal is contained in the notice or waiver
of notice of such meeting.
ARTICLE XI
CONSTRUCTION
CONSTRUCTION
Section 11.01. Construction. In the event of any conflict between the provisions of these
By-Laws as in effect from time to time and the provisions of the Certificate of Incorporation of
the Corporation as in effect from time to time, the provisions of such Certificate of Incorporation
shall be controlling.
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