UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): April 19, 2006
NATIONAL SEMICONDUCTOR CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 1-6453 95-2095071
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(State of Incorporation) (Commission (I.R.S. Employer
File Number) Identification Number)
2900 SEMICONDUCTOR DRIVE, P.O. BOX 58090
SANTA CLARA, CALIFORNIA 95052-8090
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(Address of Principal Executive Offices)
(408) 721-5000
(Registrant's telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions (see General Instruction A.2. below):
[ ] Written communication pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange
Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange
Act (17 CFR 240.13e-4(c))
NATIONAL SEMICONDUCTOR CORPORATION
Table of Contents
Page
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Section 5 - Corporate Governance and Management
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Item 5.02(d) Appointment of New Directors 3
Item 5.03(a) Amendment of By-laws 3
Section 9 - Financial Statements and Exhibits
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Item 9.01(d) Exhibits 3
Signature 4
NATIONAL SEMICONDUCTOR CORPORATION
Item 5.02(d) APPOINTMENT OF NEW DIRECTORS
As reported in our Form 8-K filed April 5, 2006, John T. Dickson was
elected to the Company's Board of Directors on April 3, 2006. Effective April
19, 2006, Mr. Dickson was appointed to the Board's Audit Committee and Director
Affairs Committee.
Item 5.03(a) AMENDMENT OF BY-LAWS
On April 19, 2006, the Company's Board of Directors approved amendments to
the Company's By-laws to change the vote standard for the election of directors
from plurality to a majority of votes cast in uncontested elections. A majority
of the votes cast means that the number of shares voted "for" a director must
exceed the number of votes cast "against" that director. In contested elections
where the number of nominees exceeds the number of directors to be elected, the
vote standard will continue to be a plurality of votes cast.
In addition, if a nominee who already serves as a director is not elected,
the director shall offer to tender his or her resignation to the Board of
Directors. The Director Affairs Committee will make a recommendation to the
Board on whether to accept or reject the resignation, or whether other action
should be taken. The Board will act on the Committee's recommendation and
publicly disclose its decision and the rationale behind it within 90 days from
the date of the certification of the election results. The director who tenders
his or her resignation will not participate in the Board's decision. If the
failure of a nominee to be elected at the annual meeting results in a vacancy on
the Board, that vacancy can be filled by action of the Board.
A copy of the complete By-laws, as amended, is attached as Exhibit 3.2.
Item 9.01 FINANCIAL STATEMENTS AND EXHIBITS
(d) Exhibits
Exhibit No. Description of Exhibit
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3.2 By-laws of the Company
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
NATIONAL SEMICONDUCTOR CORPORATION
Dated: April 20, 2006 //S// John M. Clark III
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John M. Clark III
Senior Vice President,
General Counsel and Secretary
Signing on behalf of the registrant
Exhibit 3.2
BY-LAWS
OF
NATIONAL SEMICONDUCTOR CORPORATION
AMENDED AS OF APRIL 19, 2006
ARTICLE I.
OFFICES
Section 1. Registered Office. The registered office shall be in the City of
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Wilmington, County of New Castle, State of Delaware.
Section 2. Other Offices. The corporation may also have offices at such
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other places both within and without the State of Delaware as the board of
directors may from time to time determine or the business of the corporation may
require.
ARTICLE II.
STOCKHOLDERS
Section 1. Place of Meetings. Meetings of stockholders shall be held at
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such place either within or without the State of Delaware as may be designated
by the board of directors.
Section 2. Annual Meeting. An annual meeting of stockholders shall be held
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on the fourth Friday in September of each year, at 10:30 A.M., or at such other
date and time as shall be designated by the board of directors. At the annual
meeting the stockholders shall elect a board of directors and transact such
other business as may be properly brought before the meeting.
Section 3. Special Meetings. Subject to the rights of the holders of any
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series of stock having a preference over the Common Stock of the corporation as
to dividends or upon liquidation ("Preferred Stock") with respect to such series
of Preferred Stock, special meetings of the stockholders may be called only by
the chairman of the board or by the board of directors pursuant to a resolution
adopted by a majority of the total number of directors which the corporation
would have if there were no vacancies (the "Whole Board").
Section 4. Notice of Meetings. The secretary or such other officer of the
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corporation as is designated by the board of directors shall serve personally or
send through the mails or by telegraph a written notice of annual or special
meetings of stockholders, addressed to each stockholder of record entitled to
vote at his address as it appears on the stock transfer books of the
corporation, stating the time and place of the meeting and the purpose or
purposes for which the meeting is called, not less than ten nor more than sixty
days before the date of the meeting. If mailed, notice shall be deemed to have
been given when deposited in the United States mail, postage prepaid, directed
to the stockholder at his address as it appears on the records of the
corporation. Notice given by telegraph shall be deemed to have been given upon
delivery of the message to the telegraph company. 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
Certificate of Incorporation otherwise provides) any special meeting of the
stockholders may be cancelled, by resolution of the board of directors upon
public notice given prior to the date previously scheduled for such meeting of
stockholders.
Section 5. Waiver of Notice. Notice of a meeting need not be given to any
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stockholder who signs a waiver of notice, in person or by proxy, whether before
or after a meeting. The attendance of any stockholder at a meeting, in person or
by proxy, without protesting either prior thereto or at its commencement the
lack of notice of such meeting, shall constitute a waiver of notice by him.
Neither the business to be transacted at, nor the purpose of, any regular or
special meeting of the stockholders need be specified in any written waiver of
notice.
Section 6. Stockholder's List. The officer who has charge of the stock
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transfer book of the corporation shall prepare and make, at least ten days
before every meeting of the stockholders at which directors are to be elected, a
complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open to
examination by any stockholder, for any purpose germane to the meeting, during
ordinary business hours, for a period of at least ten days prior to the meeting,
either at a place within the city where the meeting is to be held, which place
shall be specified in the notice of the meeting, or, if not so specified, at the
place where the meeting is to be held. The list shall also be produced and kept
at the time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
Section 7. Quorum and Adjournment. Except as otherwise provided by law or
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by the Certificate of Incorporation, the holders of a majority of the
outstanding shares of the corporation entitled to vote generally in the election
of directors (the "Voting Stock"), present in person or represented by proxy,
shall constitute a quorum at all meetings of stockholders for the transaction of
business, except that when specified business is to be voted on by a class or
series of stock voting as a class, the holders of a majority of the shares of
such class or series shall constitute a quorum of such class or series for the
transaction of such business. The chairman of the meeting or a majority of the
shares so represented may adjourn the meeting from time to time, whether or not
there is such a quorum. The stockholders present at a duly called meeting at
which a quorum is present may continue to transact business until adjournment,
notwithstanding the withdrawal of enough stockholders to leave less than a
quorum. 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. If the adjournment is for more than thirty
days, or after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each stockholder of
record entitled to vote.
Section 8. Proxies. At all meetings of stockholders, each stockholder
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entitled to vote shall have one vote, to be exercised in person or by proxy, for
each share of capital stock having voting power, held by such stockholder. All
proxies shall be in writing, shall relate only to a specific meeting (including
continuations and adjournments of the same), and shall be filed with the
secretary at or before the time of the meeting. Each proxy must be signed by the
shareholder or his attorney-in-fact. The person or persons named in a proxy for
a specific meeting may vote at any adjournment of the meeting for which the
proxy was given. If more than one person is named as proxy, a majority of such
persons so named present at the meeting, or if only one shall be present, then
that one, shall have and exercise all the powers conferred upon all of the
persons unless the proxy shall provide otherwise. A proxy purporting to be
executed by or on behalf of a stockholder shall be deemed valid unless
challenged prior to or at its exercise and the burden of proving invalidity
shall rest on the challenger.
Section 9. Notice of Stockholder Business and Nominations.
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a. Annual Meetings of Stockholders.
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(1) 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, (b) by or at the direction of the board of directors or
(c) by any stockholder of the corporation who was a stockholder
of record at the time of giving of notice provided for in this
By-Law, who is entitled to vote at the meeting and who complies
with the notice procedures set forth in this By-Law.
(2) For nominations or other business to be properly brought
before an annual meeting by a stockholder pursuant to clause (c)
of paragraph (a)(1) of this By-Law, the stockholder must have
given timely notice thereof in writing to the secretary of the
corporation and such other business must otherwise be a proper
matter for stockholder action. To be timely, a stockholder's
notice shall be delivered to the secretary at the principal
executive offices of the corporation not later than the close of
business on the 120th day nor earlier than the close of business
on the 150th day prior to the first anniversary of the preceding
year's annual meeting; provided, however, that in the event that
the date of the annual meeting is more than 30 days before or
more than 120 days after such anniversary date, notice by the
stockholder to be timely must be so delivered not earlier than
the close of business on the 150th day prior to such annual
meeting and not later than the close of business on the later of
the 120th day prior to such annual meeting or the 10th day
following the day on which public announcement of the date of
such meeting is first made by the corporation. In no event shall
the public announcement of an adjournment of an annual meeting
commence a new time period for the giving of a stockholder's
notice as described above. 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 otherwise 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 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 (i) the
name and address of such stockholder, as they appear on the
corporation's books, and of such beneficial owner and (ii) the
class and number of shares of the corporation which are owned
beneficially and of record by such stockholder and such
beneficial owner.
(3) Notwithstanding anything in the second sentence of
paragraph (a)(2) of this By-Law 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 by the corporation naming all of the nominees for
director or specifying the size of the increased board of
directors at least 130 days prior to the first anniversary of the
preceding year's annual meeting, a stockholder's notice required
by this By-Law 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 10th 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
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conducted at a special meeting of stockholders as shall have been
brought before the meeting pursuant to the corporation's notice of
meeting. 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 (a)
by or at the direction of the board of directors or (b) provided that
the board of directors has determined that directors shall be elected
at such meeting, by any stockholder of the corporation who is a
stockholder of record at the time of giving of notice provided for in
this By-Law, who shall be entitled to vote at the meeting and who
complies with the notice procedures set forth in this By-Law. 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 a person or persons (as the case may
be), for election to such position(s) as specified in the
corporation's notice of meeting, if the stockholder's notice required
by paragraph (a)(2) of this By-Law shall be delivered to the secretary
at the principal executive offices of the corporation not earlier than
the close of business on the 90th day prior to such special meeting
and not later than the close of business on the later of the 60th day
prior to such special meeting or the 10th 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 of a special meeting commence a new time period for the
giving of a stockholder's notice as described above.
c. General.
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(1) Only such persons who are nominated in accordance with
the procedures set forth in this By-Law shall be eligible to
serve as directors and only such business shall be conducted at a
meeting of stockholders as shall have been brought before the
meeting in accordance with the procedures set forth in this
By-Law. Except as otherwise provided by law, the Certificate of
Incorporation or these By-Laws, the chairman of the meeting shall
have the power and duty to determine whether a nomination or any
business proposed to be brought before the meeting was made or
proposed, as the case may be, in accordance with the procedures
set forth in this By-Law and, if any proposed nomination or
business is not in compliance with this By-Law, to declare that
such defective proposal or nomination shall be disregarded.
(2) For purposes of this By-Law, "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.
(3) Notwithstanding the foregoing provisions of this By-Law,
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 By-Law. Nothing in this
By-Law shall be deemed to affect any rights (i) of stockholders
to request inclusion of proposals in the corporation's proxy
statement pursuant to Rule 14a-8 under the Exchange Act or (ii)
of the holders of any series of Preferred Stock to elect
directors under specified circumstances.
Section 10. Voting. When a quorum is present at any meeting, the
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affirmative vote of the holders of a majority of the capital stock having voting
power present in person or represented by proxy and entitled to vote on the
matter shall decide any question brought before such meeting, except when the
question is one which by express provision of statute, the Certificate of
Incorporation or these By-Laws, a different vote is required, in which case such
express provision shall govern and control the decision of such question. No
vote need be taken by ballot unless required by statute.
Section 11. Inspectors of Elections; Opening and Closing the Polls. The
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board of directors by resolution shall appoint one or more inspectors, which
inspector or inspectors may include individuals who serve the corporation in
other capacities, including, without limitation, as officers, employees, agents
or representatives, to act at the meetings of stockholders 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 is able to act at a meeting of stockholders, the chairman of
the meeting 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 law.
The chairman of the meeting 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 a meeting.
Section 12. Record Date for Action by Written Consent. In order that the
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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 upon which the resolution
fixing the record date is adopted by the board of directors, and which date
shall not be more than ten (10) 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 (10) days after the date on which such a request is
received, adopt a resolution fixing the record date (unless a record date has
previously been fixed by the board of directors pursuant to the first sentence
of this Section). If no record date has been fixed by the board of directors
pursuant to the first sentence of this Section or otherwise within ten (10) days
of the date on 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 Delaware, its principal
place of business, or to any officer or agent of the corporation having custody
of the book in which proceedings of meetings of stockholders are recorded.
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 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.
Section 13. Inspectors of Written Consent. In the event of the delivery, in
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the manner provided by Section 12 of this Article to the corporation of the
requisite written consent or consents to take corporate action and/or any
related revocation or revocations, the corporation shall engage independent
inspectors of elections for the purpose of promptly performing a ministerial
review of the validity of the consents and revocations. For the purpose of
permitting the inspectors to perform such review, no action by written consent
without a meeting shall be effective until such date as the independent
inspectors certify to the corporation that the consents delivered to the
corporation in accordance with Section 12 of this Article represent at least the
minimum number of votes that would be necessary to take the corporate action.
Nothing contained in this Section shall in any way be construed to suggest or
imply that the board of directors or any stockholder shall not be entitled to
contest the validity of any consent or revocation thereof, whether before or
after such certification by the independent inspectors, or to take any other
action (including, without limitation, the commencement, prosecution, or defense
of any litigation with respect thereto, and the seeking of injunctive relief in
such litigation).
Section 14. Effectiveness of Written Consent. Every written consent shall
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bear the date of signature of each stockholder who signs the consent and no
written consent shall be effective to take the corporate action referred to
therein unless, within sixty (60) days of the earliest dated written consent
received in accordance with Section 12 of this Article, a written consent or
consents signed by a sufficient number of holders to take such action are
delivered to the corporation in the manner prescribed in Section 12 of this
Article.
ARTICLE III.
THE BOARD OF DIRECTORS
Section 1. Composition. The board of directors shall consist of nine
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directors subject to such automatic increase as may be required by the
corporation's Restated Articles of Incorporation. The board may enlarge or
reduce the size of the board in a vote of the majority of the directors in
office. No director need be a stockholder.
Section 2. Election and Term. Except as provided in Section 3 of this
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Article, the directors shall be elected by a majority of the votes cast with
respect to the director at any meeting for the election of directors at which a
quorum is present, provided that if the number of nominees exceeds the number of
directors to be elected, the directors shall be elected by the vote of a
plurality of the shares represented in person or by proxy at any such meeting
and entitled to vote on the election of directors. For purposes of this Section
2, a majority of votes cast means that the number of shares voted "for" a
director must exceed the number of votes cast "against" the director. If an
incumbent director is not elected, the director shall offer to tender his
resignation to the board. The committee of the board of directors acting as the
nominating committee shall make a recommendation to the board of directors
whether to accept or reject the resignation, or whether other action should be
taken. The board of directors will act on the committee's recommendation and
publicly describe its decision and the rationale behind it within ninety (90)
days from the date of the certification of the election results. The director
who tenders his resignation will not participate in the board's decision. Each
director shall hold office until his successor is elected and qualified or until
his earlier resignation or removal.
Section 3. Vacancies and Newly Created Directorships. Any vacancy on the
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board of directors, or any newly created directorships, however occurring, may
be filled by a majority of the directors then in office, although less than a
quorum or by a sole remaining director, and each director so elected shall hold
office for the unexpired portion of the term of the director whose place shall
be vacant, and until his successor shall have been duly elected and qualified.
Any vacancy in the board of directors may also be filled by a majority vote of
the stockholders unless such vacancy shall have been previously filled by the
board of directors.
Section 4. Powers. The business of the corporation shall be managed by its
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board of directors which shall have and may exercise all such powers of the
corporation, including the power to make, alter or repeal the bylaws of the
corporation, and do all such lawful acts and things as are not by statute
directed or required to be exercised or done by the stockholders.
Section 5. Place of Meetings. The board of directors of the corporation may
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hold meetings both regular and special, either within or without the State of
Delaware. Members of the board of directors or any committee designated by the
board, may participate in a meeting of such board or committee by means of a
conference telephone by means of which all persons participating in the meeting
can hear each other, and participation shall constitute presence in person at
such meeting.
Section 6. Regular Meetings. Regular meetings of the board of directors may
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be held without call or notice immediately following the annual meeting of the
stockholders and at such time and at such place as shall from time to time be
selected by the board of directors, provided that in respect of any director who
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is absent when such selection is made, the notice, waiver and attendance
provisions of Section 7 of this Article shall apply to such regular meetings.
Section 7. Special Meetings and Notice. Special meetings of the board of
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directors may be called by the chairman of the board of directors, a majority of
the directors or the president on notice given to each director, either
personally (including by telephone) or by hand delivery, first-class mail,
overnight mail, courier service, telegram or facsimile transmission sent to his
business or home address, stating the place, date and hour of the meeting. If
mailed by first-class mail, such notice shall be deemed to have been adequately
given when deposited in the United States mail, postage prepaid, directed to the
director at his business or home address, at least five (5) days before such
meeting. Notice given by telegraph, overnight mail or courier service shall be
deemed adequately given upon delivery of the message to the telegraph company or
to the overnight mail or courier service company at least two days before such
meeting. Notice given by facsimile transmission shall be deemed adequately given
upon transmission of the message at least twelve (12) hours before such meeting.
Notice given by hand delivery or personally shall be deemed adequately given
when delivered at least twelve (12) hours before such meeting. Notice of a
meeting need not be given to any director who signs a waiver of notice, whether
before or after the meeting. The attendance of any director at a meeting,
without protesting either prior thereto or at its commencement the lack of
notice of such meeting, shall constitute a waiver of notice by him. Any notice
or waiver of notice of a meeting of the board of directors need not specify the
purposes of the meeting.
Section 8. Quorum and Voting. At all meetings of the board of directors a
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majority less one of the total number of directors then in office shall
constitute a quorum for the transaction of business, except that in no case
shall less than two directors be deemed to constitute a quorum, and the act of a
majority of the directors present at any meeting at which there is a quorum
shall be the act of the board of directors. If a quorum shall not be present at
any meeting of the board of directors, a majority of less than a quorum may
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present.
Section 9. Action by Consent. Any action required or permitted to be taken
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at any meeting of the board of directors may be taken without a meeting, if all
members of the board of directors, then in office, consent thereto in writing,
and the writing or writings are filed with the minutes of proceedings of the
board of directors.
Section 10. Resignation. Any director may resign at any time upon written
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notice delivered to the corporation at its principal office. The resignation
shall take effect at the time specified therein, and if no time be specified, at
the time of its dispatch to the corporation.
Section 11. Removal. A director may be removed for cause by the vote of a
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majority of the stockholders at a special or annual meeting after the director
has been given reasonable notice and opportunity to be heard before the
stockholders.
Section 12. Committees. The board of directors may, by resolution passed by
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a majority of the whole board of directors, designate one or more committees,
each committee to consist of one or more of the directors of the corporation,
which committee, to the extent provided in the resolution, shall have and may
exercise the powers of the board of directors in the management of the business
and affairs of the corporation, and may authorize the seal of the corporation to
be affixed to all papers which may require it. Such committee or committees
shall have such name or names as may be determined from time to time by
resolution adopted by the board of directors. Each committee shall keep regular
minutes of its meetings and report the same to the board of directors when
required.
ARTICLE IV.
OFFICERS
Section 1. Designation. The officers of the corporation shall consist of a
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president, a treasurer, a secretary, and such other officers including a
chairman of the board of directors, one or more group presidents, vice
presidents (including group executive vice presidents, corporate vice presidents
and senior vice presidents), assistant treasurers and assistant secretaries, as
the board of directors or the stockholders may deem warranted. With the
exception of the chairman of the board of directors who must be a director, no
officer need be a director or a stockholder. Any number of offices may be held
by the same person.
Section 2. Election and Term. Except for officers to fill vacancies and
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newly created offices provided for in Section 6 of this Article, the officers
shall be elected by the board of directors at the first meeting of the board of
directors after the annual meeting of the stockholders. All officers shall hold
office at the pleasure of the board of directors.
Section 3. Duties of Officers. In addition to those duties that may from
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time to time be delegated to them by the board of directors, the officers of the
corporation shall have the following duties:
(a) Chairman of the Board. The chairman of the board shall
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preside at all meetings of the stockholders and of the board of
directors at which he is present, shall be ex-officio a member of all
committees formed by the board of directors and shall have such other
duties and powers as the board of directors may prescribe.
(b) Chief Executive Officer. The chief executive officer of the
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corporation shall have general and active management of the business
of the corporation, shall see that all orders and resolutions of the
board of directors are carried into effect, and, in the absence or
nonelection of the chairman of the board of directors, shall preside
at all meetings of the stockholders and the board of directors at
which he is present if he is also a director. The chief executive
officer also shall 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 delegated
expressly by the board of directors to some other officer or agent of
the corporation and shall have such other powers and duties as the
board of directors may prescribe.
(c) President. Unless the board of directors expressly designates
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another officer as chief executive officer, the president shall be the
chief executive officer of the corporation and shall perform the
duties and exercise the powers of the chief executive officer. If the
president is not the chief executive officer, in the absence of the
chief executive officer or in the event of his inability or refusal to
act, the president shall perform the duties and exercise the powers of
the chief executive officer. The president shall otherwise have such
other duties and powers as the board of directors may prescribe.
(d) Group President. The group president or group presidents, if
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any, shall have general and active management of the group for which
they are designated as president by the board of directors and shall
have such other duties and powers as vice-presidents or as the board
of directors or the president may prescribe.
(e) Vice-President. The vice-president or vice-presidents, if
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any, shall have such duties and powers as the board of directors or
the president may prescribe. In the absence of the president or in the
event of his inability or refusal to act, the group president or vice
president, if any, or if there be more than one, the group presidents
or vice-presidents, in the order designated by the board of directors,
or, in the absence of such designation, then in the order of their
election, shall perform the duties and exercise the powers of the
president.
(f) Secretaries and Assistant Secretaries. The secretary shall
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record the proceedings of all meetings of the stockholders and all
meetings of the board of directors in books to be kept for that
purpose, shall perform like duties for the standing committees when
required, and shall give, or cause to be given, call and/or notices of
all meetings of the stockholders and meetings of the board of
directors in accordance with these by-laws. The secretary also shall
have custody of the corporate seal of the corporation, affix the seal
to any instrument requiring it and attest thereto when authorized by
the board of directors or the president, and shall have such other
duties and powers as the board of directors may prescribe.
The assistant secretary, if any, or if there be more than one,
the assistant secretaries, in the order designated by the board of
directors, or, if there be no such designation, then in order of their
election, shall, in the absence of the secretary or in the event of
his inability or refusal to act, perform the duties and exercise the
powers of the secretary and shall have such other duties and powers as
the board of directors may prescribe.
In the absence of the secretary or an assistant secretary at a
meeting of the stockholders or the board of directors, an acting
secretary shall be chosen by the stockholders or directors, as the
case may be, to exercise the duties of the secretary at such meeting.
In the absence of the secretary or an assistant secretary or in
the event of the inability or refusal of the secretary or an assistant
secretary to give, or cause to be given, any call and/or notice
required by law or these by-laws, any such call and/or notice may be
given by any person so directed by the board of directors, the
president or stockholders, upon whose requisition the meeting is
called in accordance with these by-laws.
(g) Treasurer and Assistant Treasurer. The treasurer shall have
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the custody of the corporate funds and securities, shall keep full and
accurate accounts of receipts and disbursements in books belonging to
the corporation and shall deposit all moneys and other valuable
effects in the name and to the credit of the corporation in such
depositories as may be designated by the board of directors. The
treasurer shall also disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, shall render to the board of directors, when the board
of directors so requires, an account of all his transactions as
treasurer and of the financial condition of the corporation, and shall
have such other duties and powers as the board of directors may
prescribe. If required by the board of directors, the treasurer shall
give the corporation a bond, which shall be renewed every six years,
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.
The assistant treasurer, if any, or if there be more than one,
the assistant treasurers in the order designated by the board of
directors, or, in the absence of such designation, then in the order
of their election, shall, in the absence of the treasurer or in the
event of his inability or refusal to act, perform the duties and
exercise the powers of the treasurer and shall have such other duties
and powers as the board of directors may prescribe.
(h) Other Officers. Any other officer shall have such powers and
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duties as the board of directors may prescribe.
Section 4. Resignation. Any officer may resign at any time upon written
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notice delivered to the corporation at its principal office. The resignation
shall take effect at the time specified therein, and if no time be specified, at
the time of its dispatch to the corporation.
Section 5. Removal. Any officer elected or appointed by the board of
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directors may be removed at any time by the affirmative vote of a majority of
the board of directors.
Section 6. Vacancies and Newly Created Offices. A vacancy in office,
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however occurring, and newly created offices, shall be filled by the board of
directors.
ARTICLE V.
CAPITAL STOCK
Section 1. Stock Certificates. Each holder of stock in the corporation
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shall be entitled to have a certificate signed in an officer's official capacity
or in the name of the corporation by the chairman of the board of directors, or
the president or a vice-president and the treasurer or an assistant treasurer,
or the secretary or an assistant secretary of the corporation, certifying the
number of shares owned by him in the corporation. Where a certificate is
countersigned (a) by a transfer agent other than the corporation or its
employee, or, (b) by a registrar other than the corporation or its employee, any
other signature on the certificate may be facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been
placed upon a certificate shall have ceased to be such officer, transfer agent
or registrar before such certificate is issued, it may be issued by the
corporation with the same effect as if he were such officer, transfer agent, or
registrar at the date of issue.
Section 2. Lost, Stolen or Destroyed Certificates. The board of directors,
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or at their direction any officer of the company, may direct a new certificate
or certificates theretofore issued by the corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates, the board of
directors, or at their direction any officer of the company, may, in its (his)
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen 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, stolen or destroyed.
Section 3. Transfer. Upon surrender to the secretary or the transfer agent
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of the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignment or authority to transfer, and upon
compliance with any provisions respecting restrictions on transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Section 4. Issue of Stock. From time to time, the board of directors may,
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by vote of a majority of the directors, issue any of the authorized capital
stock of the corporation for cash, property, services rendered or expenses, or
as a stock dividend and on any terms permitted by law.
Section 5. Fixing Record Date. In order that the corporation may determine
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the stockholders entitled to notice of or to vote at any meeting of stockholders
or any adjournment thereof, or to express consent to corporate action in writing
without a meeting or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty nor less than ten days before the date of
such meeting, nor more than sixty days prior to any other action. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the board of directors may fix a new record date for the adjourned
meeting.
Section 6. Registered Stockholders. The corporation shall be entitled to
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recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends, and to vote as such owner, and to hold liable
for calls and assessments a person registered on its books as the owner of
shares, 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 Delaware.
ARTICLE VI.
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the corporation
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may be declared by the board of directors in any regular or special meeting,
pursuant to law. Dividends may be paid in cash, in property, or in shares of
capital stock. Before payment of any dividend, there may be set aside out of any
funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
Section 2. Checks. All checks or demands for money and notes of the
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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.
Section 3. Fiscal Year. The fiscal year of the corporation shall be fixed
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by a resolution of the board of directors.
Section 4. Seal. The corporate seal shall have inscribed thereon the name
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of the corporation, the year of its organization and the words "Corporate Seal
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE VII.
AMENDMENTS
Section 1. Amendments. These by-laws may be amended at any proper meeting
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of the stockholders or of the board of directors.
ARTICLE VIII.
INDEMNIFICATION
Section 1. Non-Derivative Proceedings. The corporation shall indemnify any
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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 a director,
officer, employee, or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding 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 contenders 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 proceedings, had
reasonable cause to believe that his conduct was unlawful.
Section 2. Derivative Proceedings. The corporation shall indemnify any
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person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that he is
or was a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection with the defense or settlement of such action or
suit 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 except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper.
Section 3. Amount of Indemnification. To the extent that a director,
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officer, employee or agent of the corporation has been successful on the merits
or otherwise in defense of any action, suit or proceeding referred to in
Sections 1 or 2, or in defense of any claim, issue or matter therein, he shall
be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
Section 4. Determination to Indemnify. Any indemnification under Sections 1
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or 2 (unless ordered by a court) shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification of the
director, officer, employee or agent is proper in the circumstances because he
has met the applicable standard of conduct set forth in Sections 1 and 2. Such
determination shall be made (1) by the board of directors 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
written opinion, or (3) by the stockholders.
Section 5. Advance Payment. Expenses incurred in defending a civil or
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criminal action, suit or proceeding may be paid by the corporation in advance of
the final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of a director, officer, employee or agent to repay
such amount if it shall ultimately be determined that he is not entitled to be
indemnified by the corporation as authorized in this section or otherwise
pursuant to the law of Delaware.
Section 6. Non-Exclusiveness of By-Law. The indemnification and advancement
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of expenses provided by, or granted pursuant to, the other subsections of this
Article VIII shall not be deemed exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be entitled under any
statute, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in an official capacity and as to action in another
capacity while holding such office.
Section 7. Continuation of Indemnification. The indemnification and
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advancement of expenses provided by, or granted pursuant to this Article VIII,
or permitted by statute or otherwise, shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
Section 8. Indemnification Insurance. The corporation shall have power to
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purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against any liability asserted against him and incurred by him 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 section.