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10-Q - FORM 10-Q - TRINITY INDUSTRIES INC | d72193e10vq.htm |
EX-31.2 - EX-31.2 - TRINITY INDUSTRIES INC | d72193exv31w2.htm |
EX-31.1 - EX-31.1 - TRINITY INDUSTRIES INC | d72193exv31w1.htm |
EX-32.1 - EX-32.1 - TRINITY INDUSTRIES INC | d72193exv32w1.htm |
EX-32.2 - EX-32.2 - TRINITY INDUSTRIES INC | d72193exv32w2.htm |
Exhibit 3.1
As Amended Effective March 4, 2010
BYLAWS
OF
TRINITY INDUSTRIES, INC.
ARTICLE I.
Offices
Offices
Section 1. The registered office shall be located in the City of Wilmington, County
of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places 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 II.
Meetings of Stockholders
Meetings of Stockholders
Section 1. Meetings of the stockholders for any purpose shall be held at such time
and place, either within or without the State of Delaware, as shall be designated from time to time
by the Board of Directors and stated in the notice of the meeting or in a duly executed waiver of
notice thereof.
Section 2. The annual meeting of stockholders shall be held on such date and at such
time as shall be designated from time to time by the Board of Directors and stated in the notice of
the meeting. At such meeting, the stockholders entitled to vote thereat shall elect by a plurality
vote a Board of Directors. Nominations for election to the Board of Directors shall be made at
such meeting only by or at the direction of the Board of Directors, by a nominating committee or person
appointed by the Board of Directors, or by a stockholder of the corporation entitled to vote for
the election of directors at the meeting who complies with the notice procedures set forth in this
Section 2. Such nominations, other than those made by or at the direction of the Board of
Directors, shall be made pursuant to timely notice in writing to the Secretary of the corporation.
To be timely, a stockholders notice shall be delivered to, or mailed and received at, the
principal executive offices of the corporation not less than sixty days nor more than ninety days
prior to the anniversary date of the immediately preceding annual meeting of stockholders;
provided, however, that in the event that the annual meeting is called for a date
that is not within thirty days before or after such anniversary date, notice by the stockholder in
order to be timely must be so received not later than the close of business on the later of (i) the
sixtieth day prior to such annual meeting or (ii) the tenth day following the day on which public
announcement of the date of such meeting is first made. For purposes of these Bylaws, public
announcement shall mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press or a 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. Such stockholders notice to the Secretary shall set forth (a) as to each person
whom the stockholder proposes to nominate for election or re-election as a director, (i) the name,
age, business address and residence address of the person, (ii) the principal occupation or
employment of the person, (iii) the class and number of shares of capital stock of the corporation
which are beneficially owned by the person, and (iv) any other information relating to the person
that is required to be disclosed in solicitations for proxies for election of directors pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended; and (b) as to the stockholder
giving the notice, (i) the name and record address of the stockholder, (ii) the class and number of shares of capital stock of the
corporation which are
beneficially owned by the
2
stockholder, (iii) a description of all arrangements or understandings
between such stockholder and each proposed nominee and any other person or persons (including their
names) pursuant to which the nomination(s) are to be made by such stockholder, (iv) a
representation that such stockholder intends to appear in person or by proxy at the meeting to
nominate the persons named in its notice and (v) any other information relating to such stockholder
that would be required to be disclosed in a proxy statement or other filings required to be made in
connection with solicitations of proxies for election of directors pursuant to Section 14 of the
Exchange Act and the rules and regulations promulgated thereunder. The corporation may require any
proposed nominee to furnish such other information as may reasonably be required by the corporation
to determine the eligibility of such proposed nominee to serve as director of the corporation. No
person shall be eligible for election as a director of the corporation unless nominated in
accordance with the procedures set forth herein.
The Chairman of the meeting shall, if the facts warrant, determine and declare to the meeting
that a nomination was not made in accordance with the foregoing procedure, and if he should so
determine, he shall so declare to the meeting and the defective nomination shall be disregarded.
At each annual meeting of the stockholders, only such business shall be conducted as shall
have properly been brought before the meeting. To be properly before the meeting, the business to
be conducted must be specified in the notice of meeting (or any supplement thereto) given by or at
the direction of the Board of Directors, otherwise properly brought before the meeting by or at the
direction of the Board of Directors, or otherwise properly brought before the meeting by a
stockholder entitled to vote at the meeting. In addition to any other applicable requirements, for
business to be properly brought before the meeting by a stockholder, the stockholder must have
given timely notice thereof in writing to the Secretary of the corporation. To be timely, a
stockholders notice shall be delivered to, or mailed and received at, the principal executive
offices
3
of the corporation not less than sixty days nor more than ninety days prior to the
anniversary date of the immediately preceding annual meeting of stockholders; provided,
however, that in the event that the annual meeting is called for a date that is not within
thirty days before or after such anniversary date, notice by the stockholder in order to be timely
must be so received not later than the close of business on the later of (i) the sixtieth day prior
to such annual meeting or (ii) the tenth day following the day on which public announcement of the
date of such meeting is first made. A stockholders notice to the Secretary of the corporation
shall set forth as to each matter that the stockholder proposes to bring before the annual meeting,
(i) a brief description of the business desired to be brought before the annual meeting and the
reasons for conducting such business at the annual meeting, (ii) the name and record address of the
stockholder proposing such business, (iii) the class and number of shares of the corporation which
are beneficially owned by the stockholder, (iv) a description of all arrangements or understandings
between such stockholder and any other person or persons (including their names) in connection with
the proposal of such business by such stockholder and any material interest of such stockholder in
such business and (v) a representation that such stockholder intends to appear in person or by
proxy at the annual meeting to bring such business before the meeting. Notwithstanding the
foregoing provisions of this Section 2, a stockholder seeking to have a proposal included in the
corporations proxy statement shall comply with the requirements of Regulation 14A under the
Securities Exchange Act of 1934, as amended (including, but not limited to, Rule 14a-8 or its
successor provision).
Notwithstanding anything in these Bylaws to the
contrary, no business shall be conducted at
the annual meeting except in accordance with the procedures set forth in this Section 2; provided,
however, that nothing in this Section 2 shall be deemed to preclude discussion by any stockholder
of any business properly brought before the annual meeting in accordance with the procedures set
forth
4
in this Section 2.
The Chairman of the meeting shall, if the facts warrant, determine and declare to the meeting
that the business sought to be so conducted was not properly brought before the meeting in
accordance with the provisions of this Section 2, and if he should so determine, he shall so
declare to the meeting and any such business not properly brought before the meeting shall not be
transacted.
Section 3. Special meetings of the stockholders may be called by the chief executive
officer or a majority of the Board of Directors.
Section 4. Written or printed notice stating the place, day and hour of the meeting
and, in the case of a special meeting, the purpose or purposes for which the meeting is called,
shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting,
either personally or by mail, by or at the direction of the President, the Secretary, or the
officer or person calling the meeting, to each stockholder of record entitled to vote at such
meeting.
Section 5. Business transacted at any special meeting shall be confined to the
purposes stated in the notice thereof.
Section 6. The holders of a majority of the shares entitled to vote, represented in
person or by proxy, shall constitute a quorum at meetings of stockholders except as otherwise
provided by any applicable statute. If, however, a quorum shall not be present or represented at
any meeting of the stockholders, the presiding officer at the meeting or the stockholders present
in person or represented by proxy, shall have the power to adjourn the meeting from time to time,
without notice
other than announcement at the meeting, until a quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or represented, any business may be transacted
which might have been transacted at the meeting as originally notified. In addition, the presiding
officer at any meeting of stockholders shall have the power to adjourn the meeting at the request
of the Board
5
of Directors if the Board of Directors determines that adjournment is necessary or
appropriate to enable stockholders to consider fully information which the Board of Directors
determines has not been made sufficiently or timely available to stockholders or to otherwise
exercise effectively their voting rights.
Section 7. Except as provided in Section 2 hereof with respect to the election of the
Board of Directors, at a meeting at which a quorum is present, the vote of the holders of a
majority of the shares present in person or represented by proxy at the meeting and entitled to
vote shall be the act of the stockholders meeting, unless the vote of a greater number is required
by law or the Certificate of Incorporation.
Section 8. Each outstanding share, regardless of class, shall be entitled to one vote
on each matter submitted to a vote at a meeting of stockholders, except to the extent that the
voting rights of the shares of any class are limited or denied by the Certificate of Incorporation.
Section 9. At any meeting of the stockholders, every stockholder having the right to
vote may vote either in person, or by proxy appointed by an instrument in writing as to a
particular meeting and any adjournment or adjournments thereof subscribed by such stockholder or by
his duly authorized attorney-in-fact. A proxy shall be revocable unless expressly provided therein
to be irrevocable and unless otherwise provided by law.
Section 10. The officer or agent having charge of the stock transfer books shall
make, at least ten (10) days before each meeting of stockholders, a complete list of the
stockholders entitled
to vote at such meeting or any adjournment thereof, arranged in alphabetical order, with the
address of and number of shares held by each, which list, for a period of ten (10) days prior to
such meeting, shall be kept on file at the registered office of the corporation, and shall be
subject to inspection by any stockholder at any time during usual business hours. Such list shall
also be produced and kept
6
open at the time and place of the meeting, and shall be subject to the
inspection of any stockholder during the whole time of the meeting. The original stock transfer
books shall be prima facie evidence as to who are the stockholders entitled to examine such list or
transfer book or to vote at any such meeting of stockholders.
Section 11. Notwithstanding any inconsistent provision which may be contained in
these Bylaws, in order that the corporation may determine the stockholders entitled to consent to
corporate action in writing without a meeting, the Board of Directors may fix 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 date shall not be more than ten days after the date upon which
the resolution fixing the record date is adopted by the Board of Directors. Any stockholder of
record seeking to have the stockholders authorize or take corporate action by written consent
shall, by written notice to the Secretary, request the Board of Directors to fix a record date.
The Board of Directors shall promptly, but in all events within ten days after the date on which
such a request is received, adopt a resolution fixing the record date. If no record date has been
fixed by the Board of Directors within ten days of the date upon which such a request is received,
the record date for determining stockholders entitled to consent to corporate action in writing
without a meeting, when no prior action by the Board of Directors is required by applicable law,
shall be the first date on which a signed written consent setting forth the action taken or
proposed to be taken is delivered to the corporation by delivery to its registered office in the
State of Delaware, its principal place of
business, or any officer or agent of the corporation having custody of the book in which
proceedings of stockholders meeting are recorded, to the attention of the Secretary of the
corporation. Delivery shall be by hand or by certified or registered mail, return receipt
requested. If no record date has been fixed by the Board of Directors and prior action by the
Board of Directors is required by
7
applicable law, the record date for determining stockholders
entitled to consent to corporate action in writing without a meeting shall be at the close of
business on the date on which the Board of Directors adopts the resolution taking such prior
action.
ARTICLE III.
Directors
Directors
Section 1. The number of directors of the corporation shall be eleven (11). The
directors shall be elected at the annual meeting of the stockholders, except as provided in Section
2 of this Article, and each director elected shall hold office until his successor is elected and
qualified; provided, any director may be removed at any time, with or without cause, by the holders
of a majority of the shares entitled to vote, represented in person or by proxy, at any duly
constituted meeting of stockholders called for the purpose of removing any such director or
directors. Directors need not be residents of the State of Delaware or stockholders of the
corporation.
Section 2. Any vacancy occurring in the Board of Directors may be filled by the
affirmative vote of a majority of the remaining directors though less than a quorum of the Board of
Directors. A director elected to fill a vacancy shall be elected for the unexpired term of his
predecessor in office. Any newly created directorship(s) resulting from an increase in the
authorized number of directors elected by all stockholders entitled to vote as a single class shall
be filled by the affirmative vote of a majority of the remaining directors, even though less than a
quorum of the proposed Board of Directors.
Section 3. The business and affairs of the corporation shall be managed by its Board
of Directors which may exercise all such powers of the corporation and do all such lawful acts and
things as are not by statute, the Certificate of Incorporation, or these Bylaws directed or
required to be exercised and done by the stockholders.
8
Section 4. Meetings of the Board of Directors, regular or special, may be held either
within or without the State of Delaware.
Section 5. The first meeting of each newly elected Board of Directors shall be held
at such time and place as shall be fixed by the vote of the stockholders at the annual meeting, and
no notice of such meeting shall be necessary to the newly elected directors in order legally to
constitute the meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time and place of such first meeting of the newly elected Board of
Directors, or in the event such meeting is not held at the time and place so fixed by the
stockholders, the meeting may be held at such time and place as shall be specified in a notice
given as hereinafter provided for special meetings of the Board of Directors, or as shall be
specified in a written waiver signed by all of the directors.
Section 6. Regular meetings of the Board of Directors may be held at such time and at
such place as shall from time to time be determined by the Board. Special meetings of the Board of
Directors may be called by the Secretary on the written request of two directors.
Section 7. Written notice of regular meetings of the Board of Directors shall not be
required. Special meetings of the Board of Directors may be called upon twenty-four (24) hours
notice to each director, or such shorter period of time as the person calling the meeting deems
appropriate in the circumstances, either personally or by mail, telephone or telegram. Neither the
business to be transacted at, nor the purposes of, any special meeting of the Board of Directors
need
be specified in the notice or waiver of notice of such special meeting.
Section 8. A majority of the directors shall constitute a quorum for the transaction
of business, and the act of the majority of the directors present at a meeting at which a quorum is
present shall be the act of the Board of Directors, unless a greater number is required by the
9
Certificate of Incorporation. If a quorum shall not be present at any meeting of the Board of
Directors, the directors present thereat may adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present.
Section 9. The Board of Directors, by resolution adopted by a majority of the whole
Board, may designate three or more directors to constitute an executive committee, which committee,
unless its authority shall be otherwise expressly limited by such resolution, shall have and may
exercise all of the authority of the Board of Directors in the business and affairs of the
corporation except where action of the Board of Directors is specified by statute. Vacancies in
the membership of the committee shall be filled by the Board of Directors at a regular or special
meeting of the Board of Directors. The executive committee shall keep regular minutes of its
proceedings and report the same to the Board when required. The designation of such committee and
the delegation thereto of authority shall not operate to relieve the Board of Directors, or any
member thereof, of any responsibility imposed upon it or him by law.
ARTICLE IV.
Notices
Notices
Section 1. Except as otherwise provided in these Bylaws, notices to directors and
stockholders shall be in writing, and delivered personally or mailed to the directors or
stockholders at their addresses appearing on the books of the corporation. If mailed, such notice
shall be deemed to be given when deposited in the United States mail with postage thereon prepaid.
Notice to
directors may also be given by telegram.
Section 2. Whenever any notice is required to be given to any stockholder or director
under the provisions of the statutes, the Certificate of Incorporation or these Bylaws, a waiver
thereof in writing, signed by the person or persons entitled to such notice, whether before or
after the time
10
stated therein, shall be equivalent to the giving of such notice.
Section 3. Attendance of a director at a meeting shall constitute a waiver of notice
of such meeting, except where a director attends a meeting for the express purpose of objecting to
the transaction of any business on the ground that the meeting is not lawfully called or convened.
ARTICLE V.
Officers
Officers
Section 1. The executive officers of the corporation shall consist of a President,
one or more Vice Presidents, a Secretary and a Treasurer and may include a Chairman of the Board,
one or more Senior Vice Presidents and one or more Executive Vice Presidents, each of whom shall be
elected by the Board of Directors.
Section 2. The Board of Directors, at its first meeting after each annual meeting of
stockholders, shall choose a President, one or more Vice Presidents, a Secretary and a Treasurer,
none of whom need be a member of the Board, and may appoint one of their number Chairman of the
Board.
Section 3. Such other officers and assistant officers and agents as may be deemed
necessary may be appointed by the chief executive officer of the corporation, including a Chairman,
a President, and one or more Vice Presidents of the respective Divisions. The President or the
Vice Presidents of the Division who, in the order of their seniority, unless otherwise determined
by the chief executive officer of the corporation, shall perform the duties of the Chairman or
President, as
the case may be, of the Division in the absence or disability of the Chairman or President, as the
case may be, of that Division. Each President or Vice President, as the case may be, of a Division
shall perform such other duties and have such other powers as the chief executive officer of the
corporation or the Chairman or President, as the case may be, of that Division shall prescribe.
11
Division officers shall hold office until their respective successors shall have been chosen and
shall have qualified. Any Division officer appointed by the chief executive officer may be removed
by the chief executive officer whenever, in his judgment, the best interests of the corporation
will be served thereby. Any vacancy occurring in any office of a Division by death, resignation,
removal or otherwise shall be filled by the chief executive officer of the corporation.
Section 4. The salaries of all executive officers of the corporation shall be fixed
by the Board of Directors or by a committee of one or more directors, the members of which shall be
selected by the Board of Directors and which, unless its authority shall be otherwise limited by
resolution of the Board of Directors, shall have the power to fix the salaries of all executive
officers of the corporation.
Section 5. The executive officers of the corporation shall hold office until their
respective successors shall have been chosen and shall have qualified. Any officer or agent or
member of the executive committee elected or appointed by the Board of Directors may be removed by
the Board of Directors whenever, in its judgment, the best interests of the corporation will be
served thereby, but such removal shall be without prejudice to the contract rights, if any, of the
person so removed. Any vacancy occurring in any executive office of the corporation by death,
resignation, removal or otherwise shall be filled by the Board of Directors.
Section 6. The Board of Directors may designate whether the Chairman of the Board, if
such an officer shall have been appointed, or the President, shall be the chief executive officer
of
the corporation. The officer so designated as the chief executive officer shall preside at all
meetings of the stockholders and the Board of Directors, and shall have such other powers and
duties as usually pertain to such office or as may be delegated by the Board of Directors. The
President shall have such powers and duties as usually pertain to such office, except as the same
may be modified by the
12
Board of Directors. Unless the Board of Directors shall otherwise delegate
such duties, the chief executive officer shall have general and active management of the business
of the corporation and shall see that all orders and resolutions of the Board of Directors are
carried into effect.
Section 7. The chief executive officer or his designee shall have the authority to
execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation,
except where required or permitted by law to be otherwise signed and executed, and except where the
signing and execution thereof shall be expressly delegated by the Board of Directors to some other
officer or agent of the corporation.
Section 8. The Vice Presidents, in the order of their seniority, unless otherwise
determined by the Board of Directors, shall, in the absence or disability of the President, perform
the duties and exercise the powers of the President. The Vice Presidents shall also have the
authority to execute bonds, mortgages and other contracts requiring a seal, under the seal of the
corporation, except where required or permitted by law to be otherwise signed and executed, and
except where the signing and execution thereof shall be expressly delegated by the Board of
Directors to some other officer or agent of the corporation. The Vice Presidents shall perform
such other duties and have such other powers as the Board of Directors or the chief executive
officer of the corporation shall prescribe.
Section 9. The Secretary shall attend all meetings of the Board of Directors and all
meetings of the stockholders and shall record all the proceedings of the meetings of the
stockholders and of the Board of Directors in a book to be kept for that purpose and shall perform
like duties for the standing committees, when requested. He shall give, or cause to be given,
notice of all meetings of the stockholders and special meetings of the Board of Directors and shall
perform such other duties as may be prescribed by the Board of Directors or the President, under
whose supervision he shall
13
be. He shall keep in safe custody the seal of the corporation, and,
when authorized by the Board of Directors or directed by the President or any Vice President, affix
the same to any instrument requiring it and, when so affixed, it shall be attested by his signature
or by the signature of the Treasurer or any Assistant Secretary.
Section 10. The Assistant Secretaries, in the order of their seniority, unless
otherwise determined by the Board of Directors, shall, in the absence or disability of the
Secretary, perform the duties and exercise the powers of the Secretary. They shall perform such
other duties and have such other powers as the Board of Directors may from time to time prescribe.
Section 11. The Treasurer shall be the financial officer of the corporation. He
shall have the custody of the corporate funds and securities and shall deposit all monies and other
valuable effects in the name and to the credit of the corporation in such depositaries as may be
designated from time to time by the Board of Directors. He shall disburse the funds of the
corporation as may be ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the President and the Board of Directors at its regular
meetings, or when the Board of Directors so requires, an account of all his transactions as
Treasurer. He shall also perform such other duties as may be assigned to him by the Board of
Directors.
Section 12. If required by the Board of Directors, the Treasurer shall give the
corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the
Board of Directors for the faithful performance of the duties of his office and for the restoration
to the corporation, in
case of his death, resignation, retirement or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in his possession or under his control belonging to the
corporation.
Section 13. The Assistant Treasurers, in the order of their seniority, unless
otherwise
14
determined by the Board of Directors, shall, in the absence or disability of the
Treasurer, perform the duties and exercise the powers of the Treasurer. They shall perform such
other duties and have such other powers as the Board of Directors may from time to time prescribe.
ARTICLE VI.
Indemnification of Directors and Officers
Indemnification of Directors and Officers
Section 1. The corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action by or in the right
of the corporation) by reason of the fact that he is or was or has agreed to become a director,
officer or Division officer of the corporation, or is or was serving or has agreed to serve at the
request of the corporation as a director, officer or Division officer of another corporation,
partnership, joint venture, trust or other enterprise, or by reason of any action alleged to have
been taken or omitted in such capacity, against costs, charges, expenses (including attorneys
fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or
on his behalf in connection with such action, suit or proceeding and any appeal therefrom, if he
acted in good faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that the person
did
not act in good faith and in a manner which he reasonably believed to be in or not opposed to the
best interests of the corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
Section 2. The corporation shall indemnify any person who was or is a party or is
threatened
15
to be made a party to any threatened,
pending or completed action or suit by or in the
right of the corporation to procure a judgment in its favor by reason of the fact that he is or was
or has agreed to become a director, officer or Division officer of the corporation, or is or was
serving or has agreed to serve at the request of the corporation as a director, officer or Division
officer of another corporation, partnership, joint venture, trust or other enterprise, or by reason
of any action alleged to have been taken or omitted in such capacity, against costs, charges and
expenses (including attorneys fees) actually and reasonably incurred by him or on his behalf in
connection with the defense or settlement of such action or suit and any appeal therefrom, if he
acted in good faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation except that no indemnification shall be made in respect of any claim,
issue or matter as to which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery of Delaware or the court in which such
action or suit was brought shall determine upon application that, despite the adjudication of such
liability but in view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such costs, charges and expenses which the Court of Chancery or such
other court shall deem proper.
Section 3. Notwithstanding the other provisions of this Article, to the extent that a
director, officer or Division officer of the corporation has been successful on the merits or
otherwise, including, without limitation, the dismissal of an action without prejudice, in defense
of any action, suit or proceeding referred to in Sections 1 and 2 of this Article, or in defense of
any claim, issue or
matter therein, he shall be indemnified against all costs, charges and expenses (including
attorneys fees) actually and reasonably incurred by him or on his behalf in connection therewith.
Section 4. Any indemnification under Sections 1 and 2 of this Article (unless ordered
by a court) shall be paid by the corporation unless a determination is made (1) by the Board of
Directors
16
by a majority vote of a quorum consisting of directors who were not parties to such
action, suit or proceeding, or (2) if such a quorum is not obtainable, or, even if obtainable a
quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or
(3) by the stockholders, that indemnification of the director, officer, employee or agent is not
proper in the circumstances because he has not met the applicable standard of conduct set forth in
Sections 1 and 2 of this Article.
Section 5. Costs, charges and expenses (including attorneys fees) incurred by a
person referred to in Sections 1 and 2 of this Article in defending a civil or criminal action,
suit or proceeding shall be paid by the corporation in advance of the final disposition of such
action, suit or proceeding; provided, however, that the payment of such costs,
charges and expenses incurred by a director, officer or Division officer in his capacity as a
director, officer or Division officer (and not in any other capacity in which service was or is
rendered by such person while a director, officer or Division officer) in advance of the final
disposition of such action, suit or proceeding shall be made only upon receipt of an undertaking by
or on behalf of the director, officer or Division officer to repay all amounts so advanced in the
event that it shall ultimately be determined that such director, officer or Division officer is not
entitled to be indemnified by the corporation as authorized in this Article. The Board of
Directors may, in the manner set forth above, and upon approval of such director, officer or
Division officer of the corporation, authorize the corporations counsel to represent such person,
in any action, suit or proceeding, whether or not the corporation is a party to
such action, suit or proceeding.
Section 6. Any indemnification under Sections 1, 2 and 3, or advance of costs,
charges and expenses under Section 5 of this Article, shall be made promptly, and in any event
within 60 days, upon the written request of the director, officer or Division officer. The right
to indemnification or
17
advances as granted by this Article shall be enforceable by the director,
officer or Division officer in any court of competent jurisdiction, if the corporation denies such
request, in whole or in part, or if no disposition thereof is made within 60 days. Such persons
costs and expenses incurred in connection with successfully establishing his right to
indemnification, in whole or in part, in any such action shall also be indemnified by the
corporation. It shall be a defense to any such action (other than an action brought to enforce a
claim for the advance of costs, charges and expenses under Section 5 of this Article where the
required undertaking, if any, has been received by the corporation) that the claimant has not met
the standard of conduct set forth in Sections 1 or 2 of this Article, but the burden of proving
such defense shall be on the corporation. Neither the failure of the corporation (including its
Board of Directors, its independent legal counsel, and its stockholders) to have made a
determination prior to the commencement of such action that indemnification of the claimant is
proper in the circumstances because he has met the applicable standard of conduct set forth in
Sections 1 or 2 of this Article, 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 7. The indemnification and advancement of costs, charges and expenses
provided by this Article shall not be deemed exclusive of any other rights to which a person
seeking
indemnification or advancement of costs, charges and expenses may be entitled under any law (common
or statutory), agreement, vote of stockholders or disinterested directors or otherwise, both as to
action in his official capacity and as to action in another capacity while holding office or while
employed by or acting as agent for the corporation, and shall continue as to a person who has
ceased to be a director, officer or Division officer as to actions taken while he was such a
director, officer or
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Division officer, and shall inure to the benefit of the estate, heirs,
executors and administrators of such person. All rights to indemnification under this Article
shall be deemed to be a contract between the corporation and each director, officer or Division
officer of the corporation who serves or served in such capacity at any time while this Article is
in effect. Any repeal or modification of this Article or any repeal or modification of relevant
provisions of the Delaware General Corporation Law or any other applicable laws shall not in any
way diminish any rights to indemnification of such director, officer or Division officer or the
obligations of the corporation arising hereunder.
Section 8. In addition to the specific indemnification provided for herein, the
corporation shall indemnify each person who is or was or has agreed to become a director, officer
or Division officer of the corporation, or is or was serving or has agreed to serve at the request
of the corporation as a director, officer or Division officer of another corporation, partnership,
joint venture, trust or other enterprise, to the fullest extent authorized or permitted (i) by the
General Corporation Law of Delaware, or any other applicable law, or by any amendment thereof or
other statutory provisions in effect on the date hereof, or (ii) by the corporations Certificate
of Incorporation as in effect on the date hereof. The corporation shall also advance expenses to
any of the foregoing individuals to the fullest extent authorized or permitted (i) by the General
Corporation Law of Delaware, or any other applicable law, or by any amendment thereof or other
statutory
provision in effect on the date hereof, or (ii) by the corporations Certificate of Incorporation
as in effect on the date hereof.
Section 9. Notwithstanding the foregoing, the corporation shall have the power to
purchase and maintain insurance on behalf of any person who is or was or has agreed to become a
director, officer or Division officer of the corporation, or is or was serving at the request of
the corporation as a director, officer or Division officer of another corporation, partnership,
joint venture, trust or other
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enterprise against any liability asserted against him and incurred by
him or on his behalf in any such capacity, or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such liability under the provisions of
this Article.
Section 10. If this Article or any portion hereof shall be invalidated on any ground
by any court of competent jurisdiction, then the corporation shall nevertheless indemnify each
director, officer or Division officer of the corporation as to costs, charges and expenses
(including attorneys fees), judgments, fines and amounts paid in settlement with respect to any
action, suit or proceeding, whether civil, criminal, administrative or investigative, including an
action by or in the right of the corporation, to the full extent permitted by any applicable
portion of this Article that shall not have been invalidated and to the full extent permitted by
applicable law.
ARTICLE VII.
Certificates for Shares
Certificates for Shares
Section 1. Shares of stock of the corporation may be certificated or uncertificated
as provided under the General Corporation Law of the State of Delaware. The corporation shall
deliver, upon request, certificates representing all shares to which stockholders are entitled; and
such certificates shall be signed by the President or a Vice President, and the Secretary or an
Assistant Secretary of the corporation, and may be sealed with the seal of the corporation or a
facsimile thereof. No certificate shall be issued for any share until the consideration therefor
has been fully paid. Each certificate representing shares shall state upon the face thereof that
the corporation is organized under the laws of the State of Delaware, the name of the person to
whom issued, the number and class and the designation of the series, if any, which such certificate
represents, and the par value of each share represented by such certificate or a statement that the
shares are without par value. Except as otherwise provided by law, the rights and obligations of
holders of uncertificated
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shares and the rights and obligations of holders of certificated shares
of the same class and series shall be identical.
Section 2. The signatures of the President or Vice President, and the Secretary or
Assistant Secretary, upon a certificate may be facsimiles if the certificate is countersigned by a
transfer agent, or registered by a registrar, other than the corporation itself or an employee of
the corporation. In case any officer who has signed or whose facsimile signature has been placed
upon such certificate shall have ceased to be such officer before such certificate is issued, it
may be issued by the corporation with the same effect as if he were such officer at the date of the
issuance.
Section 3. The Board of Directors may direct a new certificate or certificates to be
issued or may register uncertificated shares in place of any certificate or certificates
theretofore issued by the corporation alleged to have been lost or destroyed, upon the making of an
affidavit of that fact by the person claiming the certificate of stock to be lost or destroyed.
When authorizing such issue of a new certificate or certificates or the registration of
uncertificated shares, the Board of Directors may, in its discretion and as a condition precedent
to the issuance or registration thereof, require the owner of such lost or destroyed certificate or
certificates, or his legal representative, to advertise the same in such manner as it shall require
and/or to give the corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the corporation with respect to the
certificate alleged to have been lost or destroyed.
Section 4. Upon surrender to the corporation or the transfer agent of the corporation
of a certificate for shares duly endorsed or accompanied by proper evidence of succession,
assignment or authority to transfer, it shall be the duty of the corporation to issue a new
certificate or register uncertificated shares to the person entitled thereto, cancel the old
certificate, and record the transaction upon its books. Upon the receipt of proper transfer
instructions of uncertificated shares
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by the holders thereof in person or by their duly authorized
legal representatives, such uncertificated shares shall be cancelled, issuance of new equivalent
certificated shares or registration of uncertificated shares shall be made to the stockholder
entitled thereto and the transaction shall be recorded on the books of the corporation.
Section 5. For the purpose of determining stockholders entitled to notice of or to
vote at any meeting of stockholders or any adjournment thereof, or entitled to receive payment of
any dividend, or in order to make a determination of stockholders for any other proper purpose, the
Board of Directors may provide that the stock transfer books shall be closed for a stated period
but not to exceed, in any case, sixty (60) days. If the stock transfer books shall be closed for
the purpose of determining stockholders entitled to notice of or to vote at a meeting of
stockholders, such books shall be closed for at least ten (10) days immediately preceding such
meeting. In lieu of closing the stock transfer books, the Board of Directors may fix in advance a
date as the record date for any such determination of stockholders, such date in any case to be not
more than sixty (60) days, and, in case of a meeting of stockholders, not less than ten (10) days
prior to the date on which the particular action requiring such determination of stockholders is to
be taken. If the stock transfer books are not closed and no record date is fixed for the
determination of stockholders entitled to notice of or to vote at a meeting of stockholders or any
adjournment thereof, or
stockholders entitled to receive payment of a dividend, or in order to make a determination of
stockholders for any other proper purpose, the close of business on the day next preceding the day
on which notice of the meeting of stockholders is given shall be the record date with respect to
such meeting, and the close of business on the day on which the Board of Directors adopts a
resolution declaring a dividend or with respect to any other proper purpose, as the case may be,
shall be the record date for the determination of stockholders with respect thereto. When a
determination of stockholders entitled to vote at any
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meeting of stockholders has been made as
provided in this section, such determination shall apply to any adjournment thereof, except where
the determination has been made through the closing of stock transfer books and the stated period
of closing has expired.
Section 6. The corporation shall be entitled to recognize the exclusive rights of a
person registered on its books as the owner of shares to receive dividends, and to vote as such
owner, and shall not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by the laws of the State of Delaware.
ARTICLE VIII.
General Provisions
General Provisions
Section 1. The Board of Directors may declare and the corporation may pay dividends
on its outstanding shares in cash, property, or its own shares pursuant to law and subject to the
provisions of its Certificate of Incorporation.
Section 2. The Board of Directors may by resolution create a reserve or reserves out
of earned surplus for any purpose or purposes, and may abolish any such reserve in the same manner.
Section 3. The Board of Directors must, when requested by the holders of at least
one-third
of the outstanding shares of the corporation, present written reports of the business and financial
affairs of the corporation.
Section 4. All checks or demands for money and notes of the corporation shall be
signed by such officer or officers or such other person or persons as the Board of Directors may
from time to time designate as provided in these Bylaws.
Section 5. The fiscal year of the corporation shall be fixed by resolution of the
Board of Directors.
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Section 6. The corporate seal shall have inscribed thereon the name of the
corporation and may be used by causing it or a facsimile thereof to be impressed or affixed or in
any other manner reproduced.
ARTICLE IX.
Amendments
Amendments
These Bylaws may be altered, amended or repealed at any regular or special meeting of, or by
the unanimous written consent of, the Board of Directors.
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