EXHIBIT 3.2
AMENDED AND RESTATED
BYLAWS
OF
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
(HEREINAFTER CALLED THE "CORPORATION")
May 31, 1997
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. Written or printed notice, 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, 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.
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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 business to be considered by the stockholders
may be made at an annual meeting of stockholders (A) pursuant to the
Corporation's notice of meeting delivered pursuant to Section 2.04 of these
Amended and Restated Bylaws, (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 at
the time such notice is delivered to the Secretary of the Corporation.
(ii) For nominations or other business to be properly brought before an
annual meeting by a stockholder pursuant to clause (C) of paragraph (a) (i) of
this Bylaw, 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 less
than ninety days nor more than one hundred and twenty days prior to the first
anniversary of the preceding year's annual meeting; provided however, that
with respect to the annual meeting to be held in 1998, the anniversary date
shall be deemed to be April 2, 1998; provided further, that in the event that
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 one hundred
and 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. In no event shall the public announcement of an
adjournment or postponement of an annual meeting commence a new 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 or reelection as a director all
information relating to such person that is required to be disclosed in
solicitations of proxies for election of directors in an election contest, or
is other-wise required, in each case pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and Rule 14a-
11 thereunder, 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 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
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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 and (2) the class and number
of shares of the Corporation which are owned beneficially and of record by
such stockholder and such beneficial owner.
(iii) Notwithstanding anything in the second sentence of clause (ii) of this
Section 2.07(a) to the contrary, in the event that the number of directors to
be elected to the Board of Directors of the Corporation is increased and there
is no public announcement naming all of the nominees for director or
specifying the size of the increased Board of Directors made by the
Corporation at least one hundred days prior to the first anniversary of the
preceding year's annual meeting, a stockholder's notice required by this Bylaw
shall also be considered timely, but only with respect to nominees for any new
positions created by such increase, if it shall be delivered to the Secretary
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. 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) by any stockholder of the Corporation who is
entitled to vote at the meeting, who complies with the notice procedures set
forth in this Bylaw and who is a stockholder of record at the time such notice
is delivered to the Secretary of the Corporation. In the event the Corporation
calls a special meeting of stockholders for the purpose of electing one or
more directors to the Board of Directors, any such stockholder 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 one hundred and 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 special meeting or the tenth day following the day
on which public announcement is first made of the date of the special meeting
and of the nominees proposed by the Board of Directors to be elected at such
meeting. In no event shall the public announcement of an adjournment or
postponement of a special meeting commence a new 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 a 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 Bylaw. 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 in accordance with the procedures set forth in this Bylaw
and, if any proposed nomination or business is not in compliance with this
Bylaw, to declare that such defective proposal or nomination shall be
disregarded.
(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 Bylaw, 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
Bylaw. Nothing in this Bylaw shall be deemed to affect any rights of
stockholders to request inclusion of proposals in the Corporation's proxy
statement pursuant to Rule 14a-8 under the Exchange Act.
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SECTION 2.08. Procedure For Election of Directors; Voting. The election of
directors submitted to stockholders at any meeting shall be decided by a
plurality of the votes cast thereon, except as otherwise set forth in the
Amended and Restated Certificate of Incorporation with respect to the right of
the holders of any series of Preferred Stock or any other series or class of
stock to elect additional directors under specified circumstances. Except as
otherwise provided by law, 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. Inspectors of Elections; Opening and Closing the Polls.
(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.
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.
SECTION 3.02. Number, Tenure and Qualifications. Subject to Section 3.12 of
these Amended and Restated Bylaws and 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
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 fourteen
directors. However, no decrease in the number of directors constituting the
Board of Directors shall shorten the term of any incumbent director. The
directors, other than those who may be elected by 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, shall be divided into such
classes and hold office for such terms as set forth in, and may be removed
only in accordance with, the Amended and Restated Certificate of
Incorporation.
Each director shall be required to become a stockholder of the Corporation
within 60 days after the date such director is first elected to the Board of
Directors.
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SECTION 3.03. Regular Meetings. A regular meeting of the Board of Directors
shall be held without other notice than this Bylaw immediately after, and at
the same place as, each annual meeting of stockholders. The Board of Directors
may, by resolution, provide the time and place for the holding of additional
regular meetings without other notice than such resolution. Unless otherwise
determined by the Board of Directors, the Secretary of the Corporation shall
act as secretary at all regular meetings of the Board of Directors and in the
Secretary's absence 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 and the President,
acting together, 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 of the Corporation shall act as secretary at all
special meetings of the Board of Directors and in the Secretary's absence 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 be communicated
to each director personally or by telephone, 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 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 any committee thereof may be
taken without a meeting if a written consent thereto is signed by all members
of the Board or of such committee, as the case may be, and such written
consent is filed with the records of the proceedings of the Board or such
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 similar
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 or any
committee, a majority of the entire Board of Directors (as defined in Section
3.09(a)) or the entire committee (assuming no vacancies), as the case may be,
shall constitute a quorum for the transaction of business and the act of a
majority of the directors or members, as the case may be, present at any
meeting at which there is a 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. If permitted by applicable law, the directors or members, as
the case may be, present at a duly authorized meeting may continue to transact
business until adjournment, notwithstanding the withdrawal of enough directors
to leave less than a quorum.
SECTION 3.09. Committees. (a) The Corporation shall have four standing
committees: the executive committee, the nominating and directors committee,
the audit committee and the compensation committee. The executive committee
shall have those powers and authority as are delegated to it from time to time
pursuant to a resolution passed by a three-quarters vote 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 (the "entire Board of Directors").
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(b) The nominating and directors committee shall have the following
exclusive powers and authority: (i) evaluating and recommending director
candidates to the Board of Directors, (ii) assessing Board of Directors
performance not less frequently than every three years, (iii) recommending
director compensation and benefits philosophy for the Corporation, (iv)
reviewing individual director performance as issues arise and (v) periodically
reviewing the Corporation's corporate governance profile. None of the members
of the nominating and directors committee shall be a member of the executive
committee or an officer or full-time employee of the Corporation or of any
subsidiary or affiliate of the Corporation.
(c) The audit committee shall have the following powers and authority: (i)
employing independent public accountants to audit the books of account,
accounting procedures, and financial statements of the Corporation and to
perform such other duties from time to time as the audit committee may
prescribe, (ii) receiving the reports and comments of the Corporation's
internal auditors and of the independent public accountants employed by the
committee and to take such action with respect thereto as may seem
appropriate, (iii) requesting the Corporation's consolidated subsidiaries and
affiliated companies to employ independent public accountants to audit their
respective books of account, accounting procedures, and financial statements,
(iv) requesting the independent public accountants to furnish to the
compensation committee the certifications required under any present or future
stock option, incentive compensation or employee benefit plan of the
Corporation, (v) reviewing the adequacy of internal financial controls, (vi)
approving the accounting principles employed in financial reporting, (vii)
approving the appointment or removal of the Corporation's general auditor, and
(viii) reviewing the accounting principles employed in financial reporting.
None of the members of the audit committee shall be a member of the executive
committee or an officer or full-time employee of the Corporation or of any
subsidiary or affiliate of the Corporation.
(d) The compensation committee shall have the following powers and
authority: (i) determining and fixing the compensation for all senior officers
of the Corporation and those of its Subsidiaries (as defined in Section
6.07(f)) that the compensation committee shall from time to time consider
appropriate, as well as all employees of the Corporation and its Subsidiaries
compensated at a rate in excess of such amount per annum as may be fixed or
determined from time to time by the Board of Directors, (ii) performing the
duties of the committees of the Board of Directors provided for in any present
or future stock option, incentive compensation or employee benefit plan of the
Corporation or, if the compensation committee shall so determine, any such
plan of any Subsidiary and (iii) reviewing the operations of and policies
pertaining to any present or future stock option, incentive compensation or
employee benefit plan of the Corporation or any Subsidiary that the
compensation committee shall from time to time consider appropriate. None of
the members of the compensation committee shall be a member of the executive
committee or an officer or full-time employee of the Corporation or of any
subsidiary or affiliate of the Corporation.
(e) In addition, the Board of Directors may, by resolution passed by a
three-quarters vote of the entire Board of Directors, designate one or more
additional committees, with each such committee consisting of one or more
directors of the Corporation and having such powers and authority as the Board
of Directors shall designate by such resolutions.
(f) Any modification to the powers and authority of any committee shall
require the adoption of a resolution by a three-quarters vote of the entire
Board of Directors.
(g) 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.
(h) 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
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any 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. The
number of directors which shall constitute any committee shall be determined
by resolution adopted by a three-quarters vote of the entire Board of
Directors.
(b) The Board of Directors may remove a director from a committee or change
the chairmanship of a committee only by resolution adopted by a three-quarters
vote of the entire Board of Directors.
(c) 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; provided, that any such designation may only be amended by a three-
quarters vote of the entire Board of Directors.
SECTION 3.11. Committee Secretary. The Board of Directors may elect a
secretary of any such committee. If the Board of Directors does not elect such
a secretary, the committee shall do so. The secretary of any committee need
not be a member of the committee, but shall be selected from a member of the
staff of the office of the Secretary of the Corporation, unless otherwise
provided by the Board of Directors or the committee, as applicable.
SECTION 3.12. Certain Modifications. Except as otherwise provided in the
Amended and Restated Certificate of Incorporation, any action by the Board of
Directors to change the number of directors comprising the Board or comprising
any class of directors to other than an even number of directors shall require
a three-quarters vote of the entire Board of Directors.
SECTION 3.13. 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 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 and Chief
Executive Officer; a President and Chief Operating Officer; a Chief Financial
Officer; a Chief Strategic and Administrative Officer; a Chief Legal Officer;
one or more Senior Executive Vice Presidents; one or more Executive Vice
Presidents; one or more Senior Vice Presidents; one or more First Vice
Presidents; one or more 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. 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.
SECTION 4.02. Election and Term of Office. Subject to Section 4.08 of these
Amended and Restated Bylaws, 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. Subject to Section
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4.08 of these Amended and Restated Bylaws, 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 and Chief Executive Officer. The
Chairman of the Board shall be a member of the Board of Directors and shall be
an officer of the Corporation. The Chairman of the Board shall be the Chief
Executive Officer of the Corporation and 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. The Chairman of the Board,
if present, shall preside at all meetings of the Board of Directors.
SECTION 4.04. President and Chief Operating Officer. The President and Chief
Operating Officer shall be a member of the Board of Directors and an officer
of the Corporation. The President and Chief Operating 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 President
and 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 Chairman and Chief Executive Officer. In the absence or
disability of the Chairman of the Board and Chief Executive Officer, the
duties of the Chairman of the Board shall be performed and the Chairman of the
Board's authority may be exercised by the President and Chief Operating
Officer, and in the event the President and Chief Operating Officer is absent
or disabled, such duties shall be performed and such authority may be
exercised by a director designated for this purpose by the Board of Directors.
SECTION 4.05. 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, the Chairman and Chief Executive Officer and the President and
Chief Operating Officer.
SECTION 4.06. Chief Strategic and Administrative Officer. The Chief
Strategic and Administrative Officer shall have the responsibility for the
business strategy and strategic planning for the Corporation and shall have
the responsibility for making recommendations regarding the capital allocation
of the Corporation. The Chief Strategic and Administrative 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, the Chairman and Chief Executive Officer and the President
and Chief Operating Officer.
SECTION 4.07. Chief Legal Officer. The Chief Legal Officer shall have
responsibility for the legal affairs of the Corporation and for the
performance of the duties of the Secretary. 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, the Chairman and Chief Executive Officer and the President
and Chief Operating Officer.
SECTION 4.08. Certain Actions. Notwithstanding anything to the contrary
contained in these Amended and Restated Bylaws, the removal of the current
Chairman and Chief Executive Officer or the current President and Chief
Operating Officer as of May 31, 1997, or any modification to either of their
respective roles, duties or authority shall require a three-quarters vote of the
entire Board of Directors.
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SECTION 4.09. 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 for 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.
Notwithstanding the adoption of such a resolution by the Board of Directors,
every holder of stock represented by certificates and upon request every
holder of uncertificated shares shall be entitled to have a certificate signed
by, or in the name of the Corporation by the Chairman of the Board of
Directors, or the President or any other authorized officer and 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. Except as otherwise expressly provided by law, the rights
and obligations of the holders of uncertificated stock and the rights and
obligations of the holders of certificates representing stock of the same
class and series shall be identical.
(b) The certificates of stock shall be signed, countersigned and registered
in such manner as the Board of Directors may by resolution prescribe, which
resolution may permit all or any of the signatures on such certificates to be
in facsimile. In case any officer, transfer agent or registrar who has signed
or whose facsimile signature has been placed upon a certificate has ceased to
be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the Corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
(c) 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 for
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 or certificated 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.
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.
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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.
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, 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.
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 selected by the audit committee, and it shall be
the duty of the audit committee to cause such audit to be made annually.
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
action, suit, or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), 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
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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 any events that occurred prior to, the time of
such repeal, amendment, adoption or modification.
(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 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) 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.
(f) 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 a corporation, a majority of the capital stock of
which is owned directly or indirectly by the Corporation, other than
directors' qualifying shares.
(g) 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 of the Corporation and shall be effective
only upon receipt by the Secretary.
ARTICLE 7
CONTRACTS, PROXIES, ETC.
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 President, the Chief Financial Officer, the Chief
Strategic and Administrative Officer, the Chief Legal Officer and the
Treasurer may enter into, execute, deliver and amend bonds, promissory notes,
contracts, agreements, deeds,
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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 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. Unless a higher percentage is required by the
Amended and Restated Certificate of Incorporation as to any matter which is
the subject of these Amended and Restated Bylaws, all such amendments must be
approved by either the holders of eighty percent (80%) of the Voting Stock or
by a majority of the Board of Directors; provided further, notwithstanding the
foregoing, the Board of Directors may alter, amend or repeal, or adopt new
Amended and Restated Bylaws in conflict with, (i) any provision of these
Amended and Restated Bylaws which requires a three-quarters vote of the entire
Board of Directors for action to be taken thereunder, (ii) subsection (c) of
Section 3.10 of these Amended and Restated Bylaws and (iii) this proviso to
this Section 8.01 of these Amended and Restated Bylaws only by a resolution
adopted by a three-quarters vote of the entire board of Directors until
December 31, 2000; provided further, that, notwithstanding the foregoing, the
Board of Directors may alter, amend or repeal, or adopt new Amended and
Restated Bylaws in conflict with, (i) Section 4.08 of these Amended and
Restated Bylaws and (ii) this further proviso to this Section 8.01 of these
Amended and Restated Bylaws only by a resolution adopted by a three-quarters
vote of the entire Board of Directors.
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