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EXHIBIT
3.1
As
amended December 25, 2009
AMENDED
AND RESTATED
BYLAWS
OF
MORGAN
STANLEY
(hereinafter
called the "Corporation")
ARTICLE
1
OFFICES
AND RECORDS
SECTION 1.01. Delaware
Office. The principal office of the Corporation in the State
of Delaware shall be located in the City of Wilmington, County of New
Castle.
SECTION
1.02. Other
Offices. The Corporation may have such other offices, either
within or without the State of Delaware, as the Board of Directors may designate
or as the business of the Corporation may from time to time
require.
ARTICLE
2
STOCKHOLDERS
SECTION
2.01. Annual
Meeting. The annual meeting of the stockholders of the
Corporation shall be held at such date, place and time as may be fixed by
resolution of the Board of Directors.
SECTION 2.02. Special
Meeting. Subject to the rights of the holders of any series of
preferred stock of the Corporation (the "Preferred Stock") or any other series
or class of stock as set forth in the Amended and Restated Certificate of
Incorporation, special meetings of the stockholders may be called at any time
only by the Secretary at the direction of the Board of Directors pursuant to a
resolution adopted by the Board of Directors.
SECTION 2.03. Place of
Meeting. The Board of Directors may designate the place of
meeting for any meeting of the stockholders. If no designation is
made by the Board of Directors, the place of meeting shall be the principal
office of the Corporation, which will be 1585 Broadway, New York, New
York.
SECTION 2.04. Notice of
Meeting. 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, electronically, to each
stockholder of record entitled to vote at such meeting. Such further
notice shall be given as may be required by law. Only such business
shall be conducted at a special meeting of stockholders as shall have been
brought before the meeting pursuant to the Corporation's notice of
meeting. Any previously scheduled meeting of the stockholders may be
postponed, and (unless the Amended and Restated Certificate of Incorporation
otherwise provides) any special meeting of the stockholders may be canceled, by
resolution of the Board of Directors upon public notice given prior to the time
previously scheduled for such meeting of stockholders.
SECTION
2.05. Quorum and
Adjournment. Except as otherwise provided by law or by the
Amended and Restated 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 such 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. Proxies. At all
meetings of stockholders, a stockholder may vote by proxy as may be permitted by
law; provided, that no proxy shall be voted after three years from its date,
unless the proxy provides for a longer period. Any proxy to be used
at a meeting of stockholders must be filed with the Secretary of the Corporation
or his representative at or before the time of the meeting.
SECTION
2.07. 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 other business
to be considered by the stockholders may be made at an annual meeting of
stockholders only (A) pursuant to the Corporation's notice of meeting delivered
pursuant to Section 2.04 of these Amended and Restated Bylaws (or any supplement
thereto), (B) by or at the direction of the Board of Directors or (C) by any
stockholder of the Corporation who is entitled to vote at the meeting, who
complied with the notice procedures set forth in clauses (ii) and (iii) of this
Section 2.07(a) and who was a stockholder of record on the date such notice is
delivered to the Secretary of the Corporation.
2
(ii) For
nominations or other business to be properly brought before an annual meeting by
a stockholder pursuant to clause (C) of paragraph (a) (i) of this Section 2.07,
the stockholder must have given timely notice thereof in writing to the
Secretary of the Corporation and, in the case of business other than
nominations, such other business must otherwise be a proper matter for
stockholder action. To be timely, a stockholder's notice shall be
delivered to the Secretary at the principal executive offices of the Corporation
not later than the close of business on the ninetieth day, nor earlier than the
close of business on the one hundred twentieth day prior to the first
anniversary of the preceding year's annual meeting; provided however, that if
the date of the annual meeting is advanced by more than thirty days, or delayed
by more than ninety days, from such anniversary date, notice by the stockholder
to be timely must be so delivered not earlier than the close of business on the
one hundred twentieth day prior to such annual meeting and not later than the
close of business on the later of the ninetieth day prior to such annual meeting
or the tenth day following the day on which public announcement of the date of
such meeting is first made by the Corporation. In no event shall the
public announcement of an adjournment or postponement of an annual meeting
commence a new time period (or extend any time period) for the giving of a
stockholder's notice as described in this Section 2.07(a). Such stockholder's
notice shall set forth (A) as to each person whom the stockholder proposes to
nominate for election as a director, all information relating to such person
that is required to be disclosed in solicitations of proxies for election of
directors in an election contest, or is otherwise required, in each case
pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), including such person's 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 text of the proposal or business (including the text of any resolutions
proposed for consideration and if such business includes a proposal to amend the
Amended and Restated Bylaws of the Corporation, the text of the proposed
amendment), the reasons for conducting such business at the meeting, and any
material interest in such business of such stockholder and the beneficial owner,
if any, on whose behalf the proposal is made; and (C) as to the stockholder
giving the notice and the beneficial owner, if any, on whose behalf the
nomination or proposal is made (1) the name and address of such stockholder, as
they appear on the Corporation's books, and of such beneficial owner, (2) the
class or series and number of shares of the Corporation that are owned
beneficially and of record by such stockholder and such beneficial owner, (3) a
description of any agreement, arrangement or understanding with respect to the
nomination or proposal between or among such stockholder and such beneficial
owner, any of their respective affiliates or associates, and any others acting
in concert with any of the foregoing, (4) a description of any agreement,
arrangement or understanding (including any derivative or short positions,
profit interests, options, warrants, stock appreciation or similar rights,
hedging transactions, and borrowed or loaned shares) that has been entered into
as of the date of the stockholder's notice by, or on behalf of, such stockholder
and such beneficial owners, the effect or intent of which is to mitigate loss
to, manage risk or benefit of share price changes for, or increase or decrease
the voting power of, such stockholder or such beneficial owner, with respect to
shares of stock of the Corporation, (5) a representation that the
stockholder is a holder of record of stock of the Corporation entitled to vote
at such meeting and intends to appear in person or by proxy at the meeting to
propose such business or nomination, and (6) a representation whether the
stockholder or the beneficial owner,
3
if any,
intends or is part of a group which intends (a) to deliver a proxy statement
and/or form of proxy to holders of at least the percentage of the Corporation's
outstanding capital stock required to approve or adopt the proposal or elect the
nominee and/or (b) otherwise to solicit proxies from stockholders in support of
such proposal or nomination. The foregoing notice requirements of
this Section 2.07 shall be deemed satisfied by a stockholder if the stockholder
has notified the Corporation of the stockholder's intention to present a
proposal or nomination at an annual meeting in compliance with applicable rules
and regulations promulgated under the Exchange Act and such stockholder's
proposal or nomination has been included in a proxy statement that has been
prepared by the Corporation to solicit proxies for such annual
meeting. The Corporation may require any proposed nominee to furnish
such other information as it may reasonably require to determine the eligibility
of such proposed nominee to serve as a director of the Corporation and the
impact that such service would have on the ability of the Corporation to satisfy
the requirements of laws, rules, regulations and listing standards applicable to
the Corporation or its directors.
(iii) Notwithstanding anything in the
second sentence of clause (ii) of this Section 2.07(a) to the contrary, if the
number of directors to be elected to the Board of Directors of the Corporation
is increased effective at the annual meeting and the public announcement by the
Corporation naming the nominees for the additional directorships is not made by
the close of business on the one hundredth day prior to the first anniversary of
the preceding year's annual meeting, a stockholder's notice required by this
Section 2.07 shall also be considered timely, but only with respect to nominees
for any new directorships created by such increase, if it shall be delivered to
the Secretary at the principal executive offices of the Corporation not later
than the close of business on the tenth day following the day on which such
public announcement is first made by the Corporation.
(b) Special Meetings of
Stockholders.
Only such business shall be conducted
at a special meeting of stockholders as shall have been brought before the
meeting pursuant to the Corporation's notice of meeting pursuant to Section 2.04
of these Amended and Restated Bylaws. Subject to the rights of the
holders of Preferred Stock, nominations of persons for election to the Board of
Directors may be made at a special meeting of stockholders at which directors
are to be elected pursuant to the Corporation's notice of meeting (i) by or at
the direction of the Board of Directors or (ii) provided that the Board of
Directors has determined that directors shall be elected at such meeting, 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 2.07 and who is a
stockholder of record at the time such notice is delivered to the Secretary of
the Corporation. If the Corporation calls a special meeting of
stockholders for the purpose of electing one or more directors to the Board of
Directors, any stockholder entitled to vote in such election may nominate such
number of persons for election to such position(s) as are specified in the
Corporation's Notice of Meeting, if the stockholder's notice as required by
clause (ii) of Section 2.07(a) of these Amended and Restated Bylaws shall be
delivered to the Secretary at the principal executive offices of the Corporation
not earlier than the close of business on the one hundred twentieth day prior to
such special meeting and not later than the close of business on the later of
the ninetieth day prior to such
4
special
meeting or the tenth day following the day on which public announcement of the
date of the special meeting and of the nominees proposed by the Board of
Directors to be elected at such meeting is first made by the
Corporation. In no event shall the public announcement of an
adjournment or postponement of a special meeting commence a new time period (or
extend any time period) for the giving of a stockholder's notice as described
above.
(c) General.
(i) Only persons who are nominated in
accordance with the procedures set forth in this Bylaw shall be eligible to be
elected as directors at an annual or special meeting of stockholders 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 2.07. Except as otherwise provided by law, the Amended and
Restated Certificate of Incorporation or these Amended and Restated Bylaws, the
Chairman of the Board 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 2.07
(including whether the stockholder or beneficial owner, if any, on whose behalf
the nomination or proposal is made (or is part of a group which solicited) did
or did not so solicit, as the case may be, proxies in support of such
stockholder's nominee or proposal in compliance with such stockholder's
representation as required by clause (a)(ii)(C)(6) of this Section 2.07) and, if
any proposed nomination or business is not in compliance with this Section 2.07,
to declare that such defective proposal or nomination shall be
disregarded. Notwithstanding the foregoing provisions of this Section
2.07, unless otherwise required by law, if the stockholder (or a qualified
representative of the stockholder) does not appear at the annual or special
meeting of stockholders of the Corporation to present a nomination or proposed
business, such nomination shall be disregarded and such proposed business shall
not be transacted, notwithstanding that proxies in respect of such vote may have
been received by the Corporation. For purposes of this Section 2.07,
to be considered a qualified representative of the stockholder, a person must be
a duly authorized officer, manager or partner of such stockholder or must be
authorized by a writing executed by such stockholder or an electronic
transmission delivered by such stockholder to act for such stockholder as proxy
at the meeting of stockholders and such person must produce such writing or
electronic transmission, or a reliable reproduction of the writing or electronic
transmission, at the meeting of stockholders.
(ii) For purposes of this Bylaw,
"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.
(iii)
Notwithstanding the foregoing provisions of this Section 2.07, 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 2.07; provided, however, that any references in these Bylaws to the
Exchange Act or the rules promulgated thereunder are not intended to and shall
not limit any requirements (including paragraphs (a)(i)(C) and (b) of this
Section 2.07) applicable to stockholder nominations or proposals as to any other
business to be
5
considered
pursuant to this Section 2.07 and compliance with paragraphs (a)(i)(C) and (b)
of this Section 2.07 shall be the exclusive means for a stockholder to make
nominations or submit proposals for any other business to be considered at an
annual or special meeting of stockholders (other than, as provided in the
penultimate sentence of (a)(ii), matters brought properly under and in
compliance with Rule 14a-8 of the Exchange Act, as may be amended from time to
time). Nothing in this Section 2.07 shall be deemed to affect any
rights (a) of stockholders to request inclusion of proposals in the
Corporation's proxy statement pursuant to applicable rules and regulations under
the Exchange Act or (b) of the holders of any series of Preferred Stock, or any
other series or class of stock as set forth in the Amended and Restated
Certificate of Incorporation, to elect directors pursuant to any applicable
provisions of the Amended and Restated Certificate of
Incorporation.
SECTION 2.08. Procedure For Election of Directors;
Voting. Except as otherwise provided by law or pursuant to any
regulation applicable to the Corporation or its securities, the rules or
regulations of any stock exchange applicable to the Corporation, the Amended and
Restated Certificate of Incorporation or these Amended and Restated Bylaws, all
matters other than the election of directors submitted to the stockholders at
any meeting shall be decided by the affirmative vote of a majority of the voting
power of the shares present in person or represented by proxy at the meeting and
entitled to vote thereon, and where a separate vote by class is required, a
majority of the voting power of the shares of that class present in person or
represented by proxy at the meeting and entitled to vote thereon.
The vote on any matter, including the
election of directors, shall be by written ballot. Each ballot shall
be signed by the stockholder voting, or by such stockholder's proxy, and shall
state the number of shares voted.
SECTION 2.09. Inspector of Elections; Opening and
Closing of Polls; Conduct of Meetings.
(a) The
Board of Directors by resolution shall appoint one or more inspectors, which
inspector or inspectors may not be directors, officers or employees of the
Corporation, to act at the meeting and make a written report
thereof. One or more persons may be designated as alternate
inspectors to replace any inspector who fails to act. If no inspector
or alternate has been appointed to act, or if all inspectors or alternates who
have been appointed are unable to act, at a meeting of stockholders, the
Chairman of the Board shall appoint one or more inspectors to act at the
meeting. Each inspector, before discharging 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. The
inspectors shall have the duties prescribed by the General Corporation Law of
the State of Delaware.
(b) The
Chairman of the Board shall fix and announce at the meeting the date and time of
the opening and the closing of the polls for each matter upon which the
stockholders will vote at the meeting.
6
(c) 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 such rules and
regulations as adopted by the Board of Directors, the person presiding over any
meeting of stockholders 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 person, 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 person of the meeting, may include, without limitation, 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 person of the meeting
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. The presiding person at any
meeting of stockholders, in addition to making any other determinations that may
be appropriate to the conduct of the meeting, shall, if the facts warrant,
determine and declare to the meeting that a matter or business was not properly
brought before the meeting and if such presiding person should so determine,
such presiding person shall so declare to the meeting and any such matter or
business not properly brought before the meeting shall not be transacted or
considered. Unless and to the extent determined by the Board of
Directors or the person presiding over the meeting, meetings of stockholders
shall not be required to be held in accordance with the rules of parliamentary
procedure.
SECTION
2.10. Confidential
Stockholder Voting. All proxies, ballots and votes, in each
case to the extent they disclose the specific vote of an identified stockholder,
shall be tabulated and certified by an independent tabulator, inspector of
elections and/or other independent parties and shall not be disclosed to any
director, officer or employee of the Corporation; provided, however, that,
notwithstanding the foregoing, any and all proxies, ballots, and voting
tabulations may be disclosed: (a) as necessary to meet legal requirements or to
assist in the pursuit or defense of legal action; (b) if 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; (c) in the event of a proxy,
consent or other solicitation in opposition to the voting recommendation of the
Board of Directors; and (d) if the stockholder requests, or consents to
disclosure of the stockholder's vote or writes comments on the stockholder's
proxy card or ballot.
ARTICLE
3
BOARD
OF 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 Amended and Restated Bylaws
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 Amended and Restated Certificate of Incorporation or by these
Amended and Restated Bylaws required to be exercised or done by the
stockholders.
7
SECTION
3.02. Number,
Tenure and Qualifications. (a) Subject to the rights of the
holders of any series of Preferred Stock, or any other series or class of stock
as set forth in the Amended and Restated Certificate of Incorporation, to elect
directors ("Preferred Stock Directors") under specified circumstances, the
number of directors shall be fixed from time to time exclusively pursuant to a
resolution adopted by the Board of Directors, but shall consist of not less than
three nor more than fifteen directors (exclusive of Preferred Stock
Directors). However, no decrease in the number of directors
constituting the Board of Directors shall shorten the term of any incumbent
director.
(b) Except
as otherwise provided in this Section 3.02, each director shall be elected by
the vote of the majority of the votes cast with respect to that director's
election at any meeting for the election of directors at which a quorum is
present, provided that if, as of the tenth day preceding the date the
Corporation first mails its notice of meeting for such meeting to the
stockholders of the Corporation, the number of nominees exceeds the number of
directors to be elected (a "Contested Election"), the directors shall be elected
by the vote of a plurality of the votes cast. For purposes of this
Section 3.02, a majority of votes cast shall mean that the number of votes cast
"for" a director's election exceeds the number of votes cast "against" that
director's election (with
"abstentions" and "broker nonvotes" not counted as a vote cast either "for" or
"against" that director's election).
(c) In
order for any incumbent director to become a nominee of the Board of Directors
for further service on the Board of Directors, such person must submit an
irrevocable resignation, provided that such resignation shall be effective if
(i) that person shall not receive a majority of the votes cast in an election
that is not a Contested Election, and (ii) the Board of Directors shall accept
that resignation in accordance with the policies and procedures adopted by the
Board of Directors for such purpose. In the event an incumbent
director fails to receive a majority of the votes cast in an election that is
not a Contested Election, the nominating and governance committee of the Board
of Directors, or such other committee designated by the Board of Directors
pursuant to Section 3.09 of these Amended and Restated Bylaws, shall make a
recommendation to the Board of Directors as to whether to accept or reject the
resignation of such incumbent director, or whether other action should be
taken. The Board of Directors shall act on the resignation, taking
into account the committee's recommendation, and publicly disclose (by a press
release and filing an appropriate disclosure with the Securities and Exchange
Commission) its decision regarding the resignation and, if such resignation is
rejected, the rationale behind the decision within 90 days following
certification of the election results.
(d) If
the Board of Directors accepts a director's resignation pursuant to this Section
3.02, or if a nominee for director is not elected and the nominee is not an
incumbent director, then the Board of Directors may fill the resulting vacancy
pursuant to ARTICLE VII of the Amended and Restated Certificate of Incorporation
or may decrease the size of the Board of Directors pursuant to the provisions of
this Section 3.02.
SECTION
3.03. Regular
Meetings. The Board of Directors may, by resolution, provide
the time and place for the holding of regular meetings without other notice than
such resolution. Unless otherwise determined by the Board of
Directors, the Secretary or an Assistant Secretary of
8
the
Corporation shall act as secretary at all regular meetings of the Board of
Directors and in the absence of the Secretary or any Assistant Secretary, a
temporary secretary shall be appointed by the chairman of the
meeting.
SECTION 3.04. Special
Meetings. Special meetings of the Board of Directors shall be
called at the request of the Chairman of the Board, the Chief Executive Officer,
or a majority of the Board of Directors. The person or persons
authorized to call special meetings of the Board of Directors may fix the place
and time of the meetings. Unless otherwise determined by the Board of
Directors, the Secretary or an Assistant Secretary of the Corporation shall act
as secretary at all special meetings of the Board of Directors and in the
absence of the Secretary and any Assistant Secretary, a temporary secretary
shall be appointed by the chairman of the meeting.
SECTION
3.05. Notice. Notice of
any special meeting shall be mailed to each director at his business or
residence not later than three days before the day on which such meeting is to
be held or shall be sent to either of such places by telegraph or facsimile or
other electronic transmission, or subject to Section 8.01 of these Amended and
Restated Bylaws, be communicated to each director personally or by telephone
(including without limitation to a representative of the director or to the
director's electronic voice message system), not later than the day before such
day of meeting. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the Board of Directors need be
specified in the notice of such meeting, except for amendments to these Amended
and Restated Bylaws as provided pursuant to Section 8.01 hereof. A
meeting may be held at any time without notice if all the directors are present
(except as otherwise provided by law) or if those not present waive notice of
the meeting in accordance with Section 6.04 hereof, either before or after such
meeting.
SECTION 3.06. Action Without
Meeting. Any action required or permitted to be taken at any
meeting of the Board of Directors or of any committee thereof may be taken
without a meeting if all members of the Board or committee, as the case may be,
consent thereto in writing or by electronic transmission and the writing or
writings or electronic transmission or transmissions are filed with the minutes
of proceedings of the Board or committee.
SECTION 3.07. Conference Telephone
Meetings. Members of the Board of Directors, or any committee
thereof, may participate in a meeting of the Board of Directors or such
committee by means of conference telephone or other communications equipment by
means of which all persons participating in the meeting can hear each other, and
such participation in a meeting shall constitute presence in person at such
meeting.
SECTION 3.08. Quorum. At all
meetings of the Board of Directors, a majority of the total number of directors
specified in the resolution pursuant to Section 3.02 of these Amended and
Restated Bylaws which the Corporation would have if there were no vacancies or
unfilled newly-created directorships (such total number of Directors, the
"entire Board of Directors") shall constitute a quorum for the transaction of
business. At all meetings of the committees of the Board of
Directors, the presence of 50% or more of the total number of members (assuming
no vacancies or unfilled newly created committee positions) shall constitute a
quorum. The vote of a majority of the directors or committee members
present at any meeting at which there is a
9
quorum
shall be the act of the Board of Directors or such committee, as the case may
be, except as otherwise provided in the Delaware General Corporation Law, the
Amended and Restated Certificate of Incorporation or these Amended and Restated
Bylaws. If a quorum shall not be present at any meeting of the Board
of Directors or any committee, a majority of the directors or members, as the
case may be, present thereat may adjourn the meeting from time to time without
further notice other than announcement at the meeting.
SECTION 3.09. Committees. (a) The
Corporation shall have four standing committees: the nominating and
governance committee, the audit committee, the risk committee and the
compensation, management development and succession committee. Each
such standing committee shall consist of such number of directors of the
Corporation and shall have such powers and authority as shall be determined by
resolution of the Board of Directors.
(b) In addition, the Board
of Directors may designate one or more additional committees, with each such
committee consisting of such number of directors of the Corporation and having
such powers and authority as shall be determined by resolution of the Board of
Directors.
(c) All acts done by any
committee within the scope of its powers and authority pursuant to these Amended
and Restated Bylaws and the resolutions adopted by the Board of Directors in
accordance with the terms hereof shall be deemed to be, and may be certified as
being, done or conferred under authority of the Board of
Directors. The Secretary or any Assistant Secretary is empowered to
certify that any resolution duly adopted by any such committee is binding upon
the Corporation and to execute and deliver such certifications from time to time
as may be necessary or proper to the conduct of the business of the
Corporation.
(d) Regular meetings of
committees shall be held at such times as may be determined by resolution of the
Board of Directors or the committee in question and no notice shall be required
for any regular meeting other than such resolution. A special meeting
of any committee shall be called by resolution of the Board of Directors, or by
the Secretary or an Assistant Secretary upon the request of the chairman or a
majority of the members of such committee. Notice of special meetings
shall be given to each member of the committee in the same manner as that
provided for in Section 3.05 of these Amended and Restated Bylaws.
SECTION 3.10. Committee
Members. (a) Each member of any committee of the
Board of Directors shall hold office until such member's successor is elected
and has qualified, unless such member sooner dies, resigns or is
removed.
(b) The Board of Directors
may designate one or more directors as alternate members of any committee to
fill any vacancy on a committee and to fill a vacant chairmanship of a
committee, occurring as a result of a member or chairman leaving the committee,
whether through death, resignation, removal or otherwise.
SECTION 3.11. Committee
Secretary. Each committee may elect a secretary for such
committee. Unless otherwise determined by the committee, the
Secretary or an Assistant Secretary of the Corporation shall act as secretary at
all regular meetings and special meetings of
10
the
committee, and in the absence of the Secretary or any Assistant Secretary a
temporary secretary shall be appointed by the chairman of the
meeting.
SECTION 3.12. Compensation. The
directors may be paid their expenses, if any, of attendance at each meeting of
the Board of Directors and may be paid compensation as director, lead director
or chairman of any committee and for attendance at each meeting of the Board of
Directors. Members of special or standing committees may be allowed
like compensation and payment of expenses for attending committee
meetings.
ARTICLE
4
OFFICERS
SECTION 4.01. General. The
officers of the Corporation shall be elected by the Board of Directors and shall
consist of: a Chairman of the Board; a Chief Executive Officer; a President; a
Chief Financial Officer; a Chief Risk Officer; a Chief Legal Officer; a Chief
Administrative Officer; a Chief Operating Officer; one or more Executive Vice
Presidents; a Secretary; one or more Assistant Secretaries; a Treasurer; one or
more Assistant Treasurers; a Controller; and such other officers as in the
judgment of the Board of Directors may be necessary or desirable, including one
or more Vice Chairmen; one or more Senior Vice Presidents; and one or more Vice
Presidents. All officers chosen by the Board of Directors shall have
such powers and duties as generally pertain to their respective offices, subject
to the specific provisions of this Article 4. Such officers shall also have
powers and duties as from time to time may be conferred by the Board of
Directors or any committee thereof. Any number of offices may be held
by the same person, unless otherwise prohibited by law, the Amended and Restated
Certificate of Incorporation or these Amended and Restated
Bylaws. The officers of the Corporation need not be stockholders or
directors of the Corporation, except that the Chairman of the Board and the
Chief Executive Officer shall be members of the Board of Directors.
SECTION 4.02. Election and Term of
Office. The elected officers of the Corporation shall be
elected annually by the Board of Directors at the regular meeting of the Board
of Directors held after each annual meeting of the stockholders. If
the election of officers shall not be held at such meeting, such election shall
be held as soon thereafter as convenient. Each officer shall hold
office until his successor shall have been duly elected and shall have qualified
or until his death or until he shall resign or be removed.
SECTION
4.03. Chairman of the
Board. The Board of Directors may elect from among its members an officer
designated as the Chairman of the Board, but the appointment of a Chairman of
the Board shall not be required. If a Chairman of the Board shall be elected,
then the Chairman of the Board shall have such duties and authority as may be
prescribed by the Board of Directors from time to time. In general the Chairman
of the Board shall perform all duties incident to the position of chairman of
the board or as may be prescribed by the Board of Directors or these Amended and
Restated Bylaws from time to time. The Chairman of the Board, if present, shall
preside at all meetings of the Board of Directors and at all meetings of the
stockholders of the Corporation. In the absence or disability of the
Chairman of the Board, the duties of the Chairman of the Board (including
presiding at all meetings of the Board of
11
Directors
and at all meetings of the Corporation) shall be performed and the authority of
the Chairman of the Board may be exercised by a director designated for this
purpose by the Board of Directors.
SECTION
4.04. Chief
Executive Officer. The Chief Executive Officer shall be a member of the
Board of Directors and shall be an officer of the Corporation. The
Chief Executive Officer shall supervise, coordinate and manage the Corporation's
business and activities and supervise, coordinate and manage its operating
expenses and capital allocation, shall have general authority to exercise all
the powers necessary for the Chief Executive Officer of the Corporation and
shall perform such other duties and have such other powers as may be prescribed
by the Board of Directors or these Amended and Restated Bylaws, all in
accordance with basic policies as established by and subject to the oversight of
the Board of Directors.
SECTION
4.05. President. The
President shall have general authority to exercise all the powers necessary for
the President of the Corporation and shall perform such other duties and have
such other powers as may be prescribed by the Board of Directors or these
Amended and Restated Bylaws, all in accordance with basic policies as
established by and subject to the oversight of the Board of Directors and the
Chief Executive Officer. The office of President may, at any time and
from time to time, be held by one or more persons. If the office of
President is held by more than one person, each person holding such office shall
serve as a Co-President and each Co-President shall have general authority to
exercise all the powers necessary for the President of the Corporation and shall
perform such other duties and have such other powers as may be prescribed by the
Board of Directors or these Amended and Restated Bylaws, all in accordance with
basic policies as established by and subject to the oversight of the Board of
Directors and the Chief Executive Officer.
SECTION 4.06. Chief Operating
Officer. The Chief Operating Officer shall have general
authority to exercise all the powers necessary for the Chief Operating Officer
of the Corporation and shall perform such other duties and have such other
powers as may be prescribed by the Board of Directors or these Amended and
Restated Bylaws, all in accordance with basic policies as established by and
subject to the oversight of the Board of Directors and the Chief Executive
Officer.
SECTION
4.07. Chief
Financial Officer. The Chief Financial Officer shall have
responsibility for the financial affairs of the Corporation and shall exercise
supervisory responsibility for the performance of the duties of the Treasurer
and the Controller. The Chief Financial Officer shall perform such
other duties and have such other powers as may be prescribed by the Board of
Directors or these Amended and Restated Bylaws, all in accordance with basic
policies as established by and subject to the oversight of the Board of
Directors and the Chief Executive Officer.
SECTION
4.08. Chief Risk
Officer. The Chief Risk Officer shall have the responsibility
for the risk management and monitoring of the Corporation. The Chief Risk
Officer shall perform such other duties and have such other powers as may be
prescribed by the Board of
12
Directors
or these Amended and Restated Bylaws, all in accordance with basic policies as
established by and subject to the oversight of the Board of Directors and the
Chief Executive Officer.
SECTION
4.09. Chief Legal
Officer. The Chief Legal Officer shall have responsibility for
the legal affairs of the Corporation. The Chief Legal Officer shall
perform such other duties and have such other powers as may be prescribed by the
Board of Directors or these Amended and Restated Bylaws, all in accordance with
basic policies as established by and subject to the oversight of the Board of
Directors and the Chief Executive Officer.
SECTION
4.10. Vacancies. A newly
created office and a vacancy in any office because of death, resignation, or
removal may be filled by the Board of Directors for the unexpired portion of the
terms at any meeting of the Board of Directors.
ARTICLE
5
STOCK
CERTIFICATES AND TRANSFERS
SECTION 5.01. Stock Certificates and
Transfers. (a) The interest of each stockholder of
the Corporation shall be evidenced by certificates representing shares of stock
in such form as the appropriate officers of the Corporation may from time to
time prescribe; provided that the Board of Directors may provide by resolution
or resolutions that all or some of all classes or series of the stock of the
Corporation shall be represented by uncertificated shares. Every
holder of stock represented by certificates shall be entitled to have a
certificate signed by, or in the name of the Corporation by the Chairman of the
Board, or the President or any Vice President or by the Treasurer or an
Assistant Treasurer, or the Secretary or an Assistant Secretary of the
Corporation representing the number of shares registered in certificate
form.
(b) The shares of the stock
of the Corporation represented by certificates shall be transferred on the books
of the Corporation by the holder thereof in person or by his attorney, upon
surrender for cancellation of certificates representing the same number of
shares, with an assignment and power of transfer endorsed thereon or attached
thereto, duly executed, with such proof of the authenticity of the signature as
the Corporation or its agents may reasonably require. Upon receipt of
proper transfer instructions from the registered owner of uncertificated shares
such uncertificated shares shall be canceled and issuance of new equivalent
uncertificated shares shall be made to the person entitled thereto and the
transaction shall be recorded upon the books of the
Corporation. Within a reasonable time after the issuance or 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 the Delaware General Corporation Law or,
unless otherwise provided by the Delaware General Corporation Law, a statement
that the Corporation will furnish without charge to each stockholder who so
requests the powers, designations, preferences and relative participating,
optional or other special rights of each class of stock or series thereof and
the qualifications, limitations or restrictions of such preferences and/or
rights.
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SECTION 5.02. Lost, Stolen or Destroyed
Certificates. No certificate for shares or uncertificated
shares of stock in the Corporation shall be issued in place of any certificate
alleged to have been lost, destroyed or stolen, except on production of such
evidence of such loss, destruction or theft and on delivery to the Corporation
of a bond of indemnity in such amount, upon such terms and secured by such
surety, as the Board of Directors or its designee may in its or his discretion
require.
ARTICLE
6
MISCELLANEOUS
PROVISIONS
SECTION 6.01. Fiscal Year. The
fiscal year of the Corporation shall be as specified by the Board of
Directors.
SECTION 6.02. Dividends. The
Board of Directors may from time to time declare, and the Corporation may pay,
dividends on its outstanding shares in the manner and upon the terms and
conditions provided by law and its Amended and Restated Certificate of
Incorporation.
SECTION 6.03. Seal. The
corporate seal shall have thereon the name of the Corporation and shall be in
such form as may be approved from time to time by the Board of Directors or by
any officer authorized to do so by the Board of Directors.
SECTION
6.04. Waiver of
Notice. Whenever any notice is required to be given to any
stockholder or director of the Corporation under the provisions of the General
Corporation Law of the State of Delaware, a waiver thereof in writing, signed by
the person or persons entitled to such notice, or a waiver by electronic
transmission by the person entitled to notice, whether before or after the time
stated therein, shall be deemed equivalent to the giving of such
notice. Neither the business to be transacted at, nor the purpose of,
any annual or special meeting of the stockholders or any meeting of the Board of
Directors or committee thereof need be specified in any waiver of notice of
such
meeting.
Attendance
of a person at a meeting shall constitute a waiver of notice of such meeting,
except when the person attends a meeting for the express purpose of objecting,
at the beginning of the meeting, to the transaction of any business because the
meeting is not lawfully called or convened.
SECTION 6.05. Audits. The
accounts, books and records of the Corporation shall be audited upon the
conclusion of each fiscal year by an independent certified public
accountant.
SECTION 6.06. Resignations. Any
director or any officer, whether elected or appointed, may resign at any time
upon notice of such resignation to the Corporation.
SECTION 6.07. Indemnification and
Insurance.
(a) Each person who was or
is made a party or is threatened to be made a party to or is involved in any
manner in any threatened, pending or completed claim, action, suit, or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"),
14
by reason
of the fact that he or she or a person of whom he or she is the legal
representative is or was a director or officer of the Corporation or a director
or elected officer of a Subsidiary, shall be indemnified and held harmless by
the Corporation to the fullest extent permitted from time to time by the General
Corporation Law of the State of Delaware as the same exists or may hereafter be
amended (but, if permitted by applicable law, in the case of any such amendment,
only to the extent that such amendment permits the Corporation to provide
broader indemnification rights than said law permitted the Corporation to
provide prior to such amendment) or any other applicable laws as presently or
hereafter in effect, and such indemnification shall continue as to a person who
has ceased to be a director or officer and shall inure to the benefit of his or
her heirs, executors and administrators; provided however, that the Corporation
shall indemnify any such person seeking indemnification in connection with a
proceeding (or part thereof) initiated by such person only if such proceeding
(or part thereof) was authorized by the Board of Directors or is a proceeding to
enforce such person's claim to indemnification pursuant to the rights granted by
this Bylaw. The Corporation shall pay the expenses incurred by such
person in defending any such proceeding in advance of its final disposition upon
receipt (unless the Corporation upon authorization of the Board of Directors
waives such requirement to the extent permitted by applicable law) of an
undertaking by or on behalf of such person to repay such amount if it shall
ultimately be determined that such person is not entitled to be indemnified by
the Corporation as authorized in this Bylaw or otherwise.
(b) The
indemnification and the advancement of expenses incurred in defending a
proceeding prior to its final disposition provided by, or granted pursuant to,
this Bylaw shall not be exclusive of any other right which any person may have
or hereafter acquire under any statute, provision of the Amended and Restated
Certificate of Incorporation, other provision of these Amended and Restated
Bylaws, agreement, vote of stockholders or Disinterested Directors or
otherwise. No repeal, modification or amendment of, or adoption of
any provision inconsistent with, this Section 6.07, nor to the fullest extent
permitted by applicable law, any modification of law, shall adversely affect any
right or protection of any person granted pursuant hereto existing at, or with
respect to, arising out of or related to any event, act or omission that
occurred prior to, the time of such repeal, modification, amendment or adoption
(regardless of when any proceeding (or part thereof) relating to such event, act
or omission arises or is first threatened, commenced or
completed).
(c) The Corporation may
maintain insurance, at its expense, to protect itself and any person who is or
was a director, officer, partner, member, employee or agent of the Corporation
or a Subsidiary or of another corporation, partnership, limited liability
company, joint venture, trust or other enterprise against any expense, liability
or loss, whether or not the Corporation would have the power to indemnify such
person against such expense, liability or loss under the General Corporation Law
of the State of Delaware.
(d) The Corporation may, to
the extent authorized from time to time by the Board of Directors, grant rights
to indemnification, and rights to be paid by the Corporation the expenses
incurred in defending any proceeding in advance of its final disposition, to any
person who is or was an employee or agent (other than a director or officer) of
the Corporation or a Subsidiary and to any person who is or was serving at the
request of the Corporation or a Subsidiary as a
15
director,
officer, partner, member, employee or agent of another corporation, partnership,
limited liability company, joint venture, trust or other enterprise, including
service with respect to employee benefit plans maintained or sponsored by the
Corporation or a Subsidiary, to the fullest extent of the provisions of this
Bylaw with respect to the indemnification and advancement of expenses of
directors and officers of the Corporation.
(e) The
Corporation’s obligation, if any, to indemnify or to advance expenses to any
person who was or is serving at its request as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise shall be reduced by any amount such person shall collect as
indemnification or advancement of expenses from such other corporation,
partnership, joint venture, trust or other
enterprise.
(f) If any provision or
provisions of this Bylaw shall be held to be invalid, illegal or unenforceable
for any reason whatsoever: (1) the validity, the legality and enforceability of
the remaining provisions of this Bylaw (including, without limitation, each
portion of any paragraph or clause of this Bylaw containing any such provision
held to be invalid, illegal or unenforceable, that is not itself held to be
invalid, illegal or unenforceable) shall not in any way be affected or impaired
thereby; and (2) to the fullest extent possible, the provisions of this Bylaw
(including, without limitation, each such portion of any paragraph of this Bylaw
containing any such provision held to be invalid, illegal or unenforceable)
shall be construed so as to give effect to the intent manifested by the
provision held invalid, illegal or unenforceable.
(g) For purposes of these
Amended and Restated Bylaws:
(1) "Disinterested Director"
means a director of the Corporation who is not and was not a party to the
proceeding or matter in respect of which indemnification is sought by the
claimant.
(2) "Subsidiary" means any
corporation, trust, limited liability company or other non-corporate business
enterprise in which the Corporation directly or indirectly holds ownership
interests representing (A) more than 50% of the voting power of all outstanding
ownership interests of such entity (other than directors' qualifying shares, in
the case of a corporation) or (B) the right to receive more than 50% of the net
assets of such entity available for distribution to the holders of outstanding
ownership interests upon a liquidation or dissolution of such
entity.
(h) Any notice, request, or
other communication required or permitted to be given to the Corporation under
this Bylaw shall be in writing and either delivered in person or sent by
telecopy, telex, telegram, overnight mail or courier service, or certified or
registered mail, postage prepaid, return receipt requested, to the Secretary or
the Chief Legal Officer or any designee of the Secretary or the Chief Legal
Officer and shall be effective only upon receipt by such officer or
designee.
ARTICLE
7
CONTRACTS,
PROXIES, ETC.
16
SECTION 7.01. Contracts. Except
as otherwise required by law, the Amended and Restated Certificate of
Incorporation or these Amended and Restated Bylaws, any contracts or other
instruments may be executed and delivered in the name and on the behalf of the
Corporation by such officer or officers of the Corporation as the Board of
Directors may from time to time direct. Such authority may be general
or confined to specific instances as the Board may determine. Subject
to the control and direction of the Board of Directors, the Chairman of the
Board, the Chief Executive Officer, the President, the Chief Financial Officer,
the Chief Risk Officer, the Chief Legal Officer and the Treasurer may enter
into, execute, deliver and amend bonds, promissory notes, contracts, agreements,
deeds, leases, guarantees, loans, commitments, obligations, liabilities and
other instruments to be made or executed for or on behalf of the
Corporation. Subject to any restrictions imposed by the Board of
Directors, such officers of the Corporation may delegate such powers to others
under his or her jurisdiction, it being understood, however, that any such
delegation of power shall not relieve such officer of responsibility with
respect to the exercise of such delegated power.
SECTION 7.02. Proxies. Unless
otherwise provided by resolution adopted by the Board of Directors, the Chairman
of the Board, the Chief Executive Officer or the President may from time to time
appoint an attorney or attorneys or agent or agents of the Corporation, in the
name and behalf of the Corporation, to cast the votes which the Corporation may
be entitled to cast as the holder of stock or other securities in any other
corporation or entity, any of whose stock or other securities may be held by the
Corporation, at meetings of the holders of the stock or other securities of such
other corporation or entity, or to consent in writing, in the name of the
Corporation as such holder, to any action by such other corporation or entity,
and may instruct the person or persons so appointed as to the manner of casting
such vote or giving such consent, and may execute or cause to be executed in the
name and on behalf of the Corporation and under its corporate seal or otherwise,
all such written proxies or other instruments as he may deem necessary or proper
in the premises.
ARTICLE
8
AMENDMENTS
SECTION 8.01. Amendments. These
Amended and Restated Bylaws may be altered, amended or repealed, in whole or in
part, or new Amended and Restated Bylaws may be adopted by the stockholders or
by the Board of Directors at any meeting thereof; provided however, that notice
of such alteration, amendment, repeal or adoption of new Amended and Restated
Bylaws is contained in the notice of such meeting of stockholders or in the
notice of such meeting of the Board of Directors and, in the latter case, such
notice is given not less than twenty-four hours prior to the meeting.
17