Bylaws - Tempur World Inc.
TEMPUR WORLD, INC.
------------------
B Y - L A W S
-------------
TABLE OF CONTENTS
-----------------
Article I. - General. .........................................................1
1.1. Offices. ............................................................1
1.2. Seal.................................................................1
1.3. Fiscal Year..........................................................1
Article II. - Stockholders.....................................................1
2.1. Place of Meetings....................................................1
2.2. Annual Meeting.......................................................1
2.3. Quorum...............................................................1
2.4. Right to Vote; Proxies...............................................2
2.5. Voting...............................................................2
2.6. Notice of Annual Meetings............................................3
2.7. Stockholders' List...................................................3
2.8. Special Meetings.....................................................3
2.9. Notice of Special Meetings...........................................3
2.10. Inspectors...........................................................4
2.11. Stockholders' Consent in Lieu of Meeting.............................4
Article III. - Directors.......................................................5
3.1. Number of Directors..................................................5
3.2. Change in Number of Directors; Vacancies.............................5
3.3. Resignation..........................................................5
3.4. Removal..............................................................6
3.5. Place of Meetings and Books..........................................6
3.6. General Powers.......................................................6
3.7. Executive Committee..................................................6
3.8. Other Committees.....................................................6
3.9. Powers Denied to Committees..........................................7
3.10. Substitute Committee Member..........................................7
3.11. Compensation of Directors............................................7
3.12. Annual Meeting.......................................................7
3.13. Regular Meetings.....................................................8
3.14. Special Meetings.....................................................8
3.15. Quorum...............................................................8
3.16. Telephonic Participation in Meetings.................................8
3.17. Action by Consent....................................................8
Article IV. - Officers.........................................................9
4.1. Selection; Statutory Officers........................................9
4.2. Time of Election.....................................................9
<PAGE>
-ii-
4.3. Additional Officers..................................................9
4.4. Terms of Office......................................................9
4.5. Compensation of Officers.............................................9
4.6. Chairman of the Board................................................9
4.7. President............................................................9
4.8. Vice-Presidents.....................................................10
4.9. Treasurer...........................................................10
4.10. Secretary...........................................................10
4.11. Assistant Secretary.................................................11
4.12. Assistant Treasurer.................................................11
4.13. Subordinate Officers................................................11
Article V. - Stock............................................................11
5.1. Stock...............................................................11
5.2. Fractional Share Interests..........................................12
5.3. Transfers of Stock..................................................12
5.4. Record Date.........................................................12
5.5. Transfer Agent and Registrar........................................13
5.6. Dividends...........................................................13
5.7. Lost, Stolen or Destroyed Certificates..............................14
5.8. Inspection of Books.................................................14
Article VI. - Miscellaneous Management Provisions.............................14
6.1. Checks, Drafts and Notes............................................14
6.2. Notices.............................................................14
6.3. Conflict of Interest................................................15
6.4. Voting of Securities owned by this Corporation......................15
Article VII. - Indemnification................................................16
7.1. Right to Indemnification............................................16
7.2. Right of Indemnitee to Bring Suit...................................17
7.3. Non-Exclusivity of Rights...........................................17
7.4. Insurance...........................................................18
7.5. Indemnification of Employees and Agents of the Corporation..........18
Article VIII. - Amendments....................................................18
8.1. Amendments..........................................................18
<PAGE>
TEMPUR WORLD, INC.
------------------
B Y - L A W S
-------------
Article I. - General.
--------------------
1.1. Offices. The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware. The Corporation may also have offices
at such 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.
1.2. Seal. The seal of the Corporation, if any, shall be in the form of a
circle and shall have inscribed thereon the name of the Corporation, the year of
its organization and the words "Corporate Seal, Delaware".
1.3. Fiscal Year. The fiscal year of the Corporation shall be the period
from January 1 through December 31.
Article II. - Stockholders.
--------------------------
2.1. Place of Meetings. All meetings of the stockholders shall be held at
the office of the Corporation in Boston, Massachusetts except such meetings as
the Board of Directors expressly determine shall be held elsewhere or solely by
means of remote communication, in which cases meetings may be held upon notice
as hereinafter provided at such other place or places within or without the
Commonwealth of Massachusetts or by remote communication as the Board of
Directors shall have determined and as shall be stated in such notice.
2.2. Annual Meeting. The annual meeting of the stockholders shall be held
each year on such date and at such time as the Board of Directors may determine.
At each annual meeting the stockholders entitled to vote shall elect a Board of
Directors by plurality vote by ballot, and they may transact such other
corporate business as may properly be brought before the meeting. At the annual
meeting any business may be transacted, irrespective of whether the notice
calling such meeting shall have contained a reference thereto, except where
notice is required by law, the Certificate of Incorporation, or these by-laws.
2.3. Quorum. At all meetings of the stockholders the holders of a majority
of the stock issued and outstanding and entitled to vote thereat, present in
person or represented by proxy, shall constitute a quorum requisite for the
transaction of business except as otherwise provided by law, by the Certificate
of Incorporation or by these by-laws. If, however, such majority shall not be
present or represented at any meeting of the
<PAGE>
-2-
stockholders, the stockholders entitled to vote thereat, present in person or by
proxy, by a majority vote, shall have power to adjourn the meeting from time to
time without notice other than announcement at the meeting until the requisite
amount of voting stock shall be present. If the adjournment is for more than
thirty (30) days, or if 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 at the meeting. At such adjourned
meeting, at which the requisite amount of voting stock shall be represented, any
business may be transacted which might have been transacted if the meeting had
been held as originally called.
2.4. Right to Vote; Proxies. Each holder of a share or shares of capital
stock of the Corporation having the right to vote at any meeting shall be
entitled to one vote for each such share of stock held by him. Any stockholder
entitled to vote at any meeting of stockholders may vote either in person or by
proxy, but no proxy which is dated more than three years prior to the meeting at
which it is offered shall confer the right to vote thereat unless the proxy
provides that it shall be effective for a longer period. A proxy may be granted
by a writing executed by the stockholder or his authorized officer, director,
employee or agent or by transmission or authorization of transmission of a
telegram, cablegram, or other means of electronic transmission to the person who
will be the holder of the proxy or to a proxy solicitation firm, proxy support
service organization or like agent duly authorized by the person who will be the
holder of the proxy to receive such transmission, subject to the conditions set
forth in Section 212 of the Delaware General Corporation Law, as it may be
amended from time to time (the "Delaware GCL").
2.5. Voting. At all meetings of stockholders, except as otherwise
expressly provided for by statute, the Certificate of Incorporation or these
by-laws, (i) in all matters other than the election of directors, the
affirmative vote of a majority of shares present in person or by means of remote
communication or represented by proxy at the meeting and entitled to vote on
such matter shall be the act of the stockholders and (ii) directors shall be
elected by a plurality of the votes of the shares present in person or by means
of remote communication or represented by proxy at the meeting and entitled to
vote on the election of directors. Except as otherwise expressly provided by
law, the Certificate of Incorporation or these by-laws, at all meetings of
stockholders the voting shall be by voice vote, but any stockholder qualified to
vote on the matter in question may demand a stock vote, by shares of stock, upon
such question, whereupon such stock vote shall be taken by ballot which may be
by electronic transmission by any stockholder present by means of remote
communication, each of which shall state the name of the
<PAGE>
-3-
stockholder voting and the number of shares voted by him, and, if such ballot be
cast by a proxy, it shall also state the name of the proxy.
2.6. Notice of Annual Meetings. Written notice of the annual meeting of
the stockholders, stating the time, the place, the means of remote
communication, if any, by which stockholders and proxy holders may be deemed to
be present in person and vote at such meeting, shall be sent not less than ten
(10) nor more than sixty (60) days prior to the meeting. It shall be the duty of
every stockholder to furnish to the Secretary of the Corporation or to the
transfer agent, if any, of the class of stock owned by him, his post-office
address and to notify said Secretary or transfer agent of any change therein.
2.7. Stockholders' List. A complete list of the stockholders entitled to
vote at any meeting of stockholders, arranged in alphabetical order and showing
the address of each stockholder, and the number of shares registered in the name
of each stockholder, shall be prepared by the Secretary and shall be open to
examination of any stockholder, for any purpose germane to the meeting for a
period of at least ten days before such meeting (i) on a reasonably accessible
electronic network, provided that the information required to gain access to
such list is provided with the notice of the meeting, or (ii) during ordinary
business hours at the principal office of the corporation, and said list shall
be open to examination during the whole time of said meeting, at the place of
said meeting, or, if the meeting held is by remote communication, on a
reasonably accessible electronic network and the information required to access
such list shall be provided with the notice of the meeting.
2.8. Special Meetings. Special meetings of the stockholders for any
purpose or purposes, unless otherwise provided by statute, may be called by the
Board of Directors, the Chairman of the Board, if any, the President or any Vice
President.
2.9. Notice of Special Meetings. Written notice of a special meeting of
stockholders, stating the time, the place, the means of remote communication, if
any, by which stockholders and proxy holders may be deemed to be present in
person and vote at such meeting and the object thereof, shall be sent not less
than ten (10) nor more than sixty (60) days before such meeting, to each
stockholder entitled to vote thereat, either in paper form or electronic form
pursuant to each stockholder's instructions on record with the Corporation. No
business may be transacted at such meeting except that referred to in said
notice, or in a supplemental notice given also in compliance with the provisions
hereof, or such other business as may be germane or supplementary to that stated
in said notice or notices.
<PAGE>
-4-
2.10. Inspectors.
1. One or more inspectors may be appointed by the Board of Directors
before or at any meeting of stockholders, or, if no such appointment shall
have been made, the presiding officer may make such appointment at the
meeting. At the meeting for which the inspector or inspectors are
appointed, he or they shall open and close the polls, receive and take
charge of the proxies and ballots, and decide all questions touching on the
qualifications of voters, the validity of proxies and the acceptance and
rejection of votes. If any inspector previously appointed shall fail to
attend or refuse or be unable to serve, the presiding officer shall appoint
an inspector in his place.
2. At any time at which the Corporation has a class of voting stock
that is (i) listed on a national securities exchange, (ii) authorized for
quotation on an inter-dealer quotation system of a registered national
securities association, or (iii) held of record by more than 2,000
stockholders, the provisions of Section 231 of the Delaware GCL with
respect to inspectors of election and voting procedures shall apply, in
lieu of the provisions of paragraph (l) of this Section 2.10.
2.11. Stockholders' Consent in Lieu of Meeting. Unless otherwise provided
in the Certificate of Incorporation, any action required by law to be taken at
any annual or special meeting of stockholders of the Corporation, or any action
which may be taken at any annual or special meeting of such stockholders, may be
taken without a meeting, without prior notice and without a vote, if a consent
or consents in writing, or by telegram, cablegram or other electronic
transmission, setting forth the action so taken, shall be signed or, in the case
of a telegram, cablegram or electronic transmission, authorized by the holders
of outstanding stock having not less than the minimum number of votes that would
be necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted and shall be delivered in paper
form to the Corporation by delivery to its registered office in the State of
Delaware, its principal place of business, or an officer or agent of the
Corporation having custody of the book in which proceedings of meetings of
stockholders are recorded. Delivery made to the Corporation's registered office
shall be by hand or by certified or registered mail, return receipt requested.
Every written consent shall 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 days of the earliest
dated consent delivered in the manner required by this Section 2.11 to the
Corporation, written consents signed or transmitted by a sufficient number of
stockholders to take action are delivered to the Corporation by delivery to its
registered
<PAGE>
-5-
office in the State of Delaware, its principal place of business, or an officer
or agent of the Corporation having custody of the book in which proceedings of
meetings of stockholders are recorded. Consents delivered by telegram, cablegram
or electronic transmission shall be deemed to be signed and dated on the date on
which such consent is transmitted to the Corporation or the agent specified by
the Corporation to receive such telegram, cablegram or electronic transmission.
Delivery made to the Corporation's registered office shall be by hand or by
certified or registered mail, return receipt requested. Prompt notice of the
taking of the corporate action without a meeting by less than unanimous written
consent shall be given to those stockholders who have not consented in writing.
Article III. - Directors.
------------------------
3.1. Number of Directors. Except as otherwise provided by law, the
Certificate of Incorporation or these by-laws, the property and business of the
Corporation shall be managed by or under the direction of a board of not less
than one nor more than thirteen directors. Within the limits specified, the
number of directors shall be determined by resolution of the Board of Directors
or by the stockholders at the annual meeting. Directors need not be
stockholders, residents of Delaware or citizens of the United States. The
directors shall be elected by ballot at the annual meeting of the stockholders
and each director shall be elected to serve until his successor shall be elected
and shall qualify or until his earlier resignation or removal; provided that in
the event of failure to hold such meeting or to hold such election at such
meeting, such election may be held at any special meeting of the stockholders
called for that purpose. If the office of any director becomes vacant by reason
of death, resignation, disqualification, removal, failure to elect, or
otherwise, the remaining directors, although more or less than a quorum, by a
majority vote of such remaining directors may elect a successor or successors
who shall hold office for the unexpired term.
3.2. Change in Number of Directors; Vacancies. The maximum number of
directors may be increased by an amendment to these by-laws adopted by a
majority vote of the Board of Directors or by a majority vote of the capital
stock having voting power, and if the number of directors is so increased by
action of the Board of Directors or of the stockholders or otherwise, then the
additional directors may be elected in the manner provided above for the filling
of vacancies in the Board of Directors or at the annual meeting of stockholders
or at a special meeting called for that purpose.
3.3. Resignation. Any director of this Corporation may resign at any time
by giving notice in writing or by electronic transmission to the
<PAGE>
-6-
Chairman of the Board, if any, the President or the Secretary of the
Corporation. Such resignation shall take effect at the time specified therein,
at the time of receipt if no time is specified therein and at the time of
acceptance if the effectiveness of such resignation is conditioned upon its
acceptance. Unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
3.4. Removal. Any director or the entire Board of Directors may be
removed, with or without cause, by the holders of a majority of the shares then
entitled to vote at an election of directors.
3.5. Place of Meetings and Books. The Board of Directors may hold their
meetings and keep the books of the Corporation outside the State of Delaware, at
such places as they may from time to time determine.
3.6. General Powers. In addition to the powers and authority expressly
conferred upon them by these by-laws, the board may exercise all such powers of
the Corporation and do all such lawful acts and things as are not by statute or
by the Certificate of Incorporation or by these by-laws directed or required to
be exercised or done by the stockholders.
3.7. Executive Committee. There may be an executive committee of one or
more directors designated by resolution passed by a majority of the whole board.
The act of a majority of the members of such committee shall be the act of the
committee. Said committee may meet at stated times or on notice to all by any of
their own number, and shall have and may exercise those powers of the Board of
Directors in the management of the business affairs of the Company as are
provided by law and may authorize the seal of the Corporation to be affixed to
all papers which may require it. Vacancies in the membership of the committee
shall be filled by the Board of Directors at a regular meeting or at a special
meeting called for that purpose.
3.8. Other Committees. The Board of Directors may also designate one or
more committees in addition to the executive committee, by resolution or
resolutions passed by a majority of the whole board; such committee or
committees shall consist of one or more directors of the Corporation, and to the
extent provided in the resolution or resolutions designating them, shall have
and may exercise specific powers of the Board of Directors in the management of
the business and affairs of the Corporation to the extent permitted by statute
and shall have power to 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.
<PAGE>
-7-
3.9. Powers Denied to Committees. Committees of the Board of Directors
shall not, in any event, have any power or authority to amend the Certificate of
Incorporation (except that a committee may, to the extent authorized in the
resolution or resolutions providing for the issuance of shares adopted by the
Board of Directors as provided in Section 151(a) of the Delaware GCL, fix the
designations and any of the preferences or rights of such shares relating to
dividends, redemption, dissolution, any distribution of assets of the
Corporation or the conversion into, or the exchange of such shares for, shares
of any other class or classes or any other series of the same or any other class
or classes of stock of the Corporation or fix the number of shares of any series
of stock or authorize the increase or decrease of the shares of any series),
adopt an agreement of merger or consolidation, recommend to the stockholders the
sale, lease or exchange of all or substantially all of the Corporation's
property and assets, recommend to the stockholders a dissolution of the
Corporation or a revocation of a dissolution or to amend the by-laws of the
Corporation. Further, no committee of the Board of Directors shall have the
power or authority to declare a dividend, to authorize the issuance of stock or
to adopt a certificate of ownership and merger pursuant to Section 253 of the
Delaware GCL, unless the resolution or resolutions designating such committee
expressly so provides.
3.10. Substitute Committee Member. In the absence or on the
disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of such absent or disqualified
member. Any committee shall keep regular minutes of its proceedings and report
the same to the board as may be required by the board.
3.11. Compensation of Directors. The Board of Directors shall have the
power to fix the compensation of directors and members of committees of the
Board. The directors may be paid their expenses, if any, of attendance at each
meeting of the Board of Directors and may be paid a fixed sum for attendance at
each meeting of the Board of Directors or a stated salary as director. No such
payment shall preclude any director from serving the Corporation in any other
capacity and receiving compensation therefor. Members of special or standing
committees may be allowed like compensation for attending committee meetings.
3.12. Annual Meeting. The newly elected board may meet at such place and
time as shall be fixed and announced by the presiding officer at the annual
meeting of stockholders, for the purpose of organization or otherwise, and no
further notice of such meeting shall be necessary to the newly elected
<PAGE>
-8-
directors in order legally to constitute the meeting, provided a quorum shall be
present, or they may meet at such place and time as shall be stated in a notice
given to such directors two (2) days prior to such meeting, or as shall be fixed
by the consent in writing of all the directors.
3.13. Regular Meetings. Regular meetings of the board may be held without
notice at such time and place as shall from time to time be determined by the
board.
3.14. Special Meetings. Special meetings of the board may be called by the
Chairman of the Board, if any, or the President, on two (2) days notice to each
director, or such shorter period of time before the meeting as will nonetheless
be sufficient for the convenient assembly of the directors so notified; special
meetings shall be called by the Secretary in like manner and on like notice, on
the written request of two or more directors.
3.15. Quorum. At all meetings of the Board of Directors, a majority of the
total number of directors shall be necessary and sufficient to constitute a
quorum for the transaction of business, 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, except as may be otherwise specifically permitted or
provided by statute, or by the Certificate of Incorporation, or by these
by-laws. If at any meeting of the board there shall be less than a quorum
present, a majority of those present may adjourn the meeting from time to time
until a quorum is obtained, and no further notice thereof need be given other
than by announcement at said meeting which shall be so adjourned.
3.16. Telephonic Participation in Meetings. Members of the Board of
Directors or any committee designated by such board may participate in a meeting
of the board or committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting pursuant to this
section shall constitute presence in person at such meeting.
3.17. Action by Consent. Unless otherwise restricted by the Certificate of
Incorporation or these by-laws, any action required or permitted to be taken at
any meeting of the Board of Directors or of any committee thereof may be taken
without a meeting, if all members of the board or committee, as the case may be,
consent thereto in writing or by electronic transmission and such consent is
filed in paper form with the minutes of proceedings of the board or committee.
<PAGE>
-9-
Article IV. - Officers.
----------------------
4.1. Selection; Statutory Officers. The officers of the Corporation shall
be chosen by the Board of Directors. There shall be a President, a Secretary and
a Treasurer, and there may be a Chairman of the Board of Directors, one or more
Vice Presidents, one or more Assistant Secretaries, and one or more Assistant
Treasurers, as the Board of Directors may elect. Any number of offices may be
held by the same person.
4.2. Time of Election. The officers above named shall be chosen by the
Board of Directors at its first meeting after each annual meeting of
stockholders. None of said officers need be a director.
4.3. Additional Officers. The board may appoint such other officers and
agents as it shall deem necessary, who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board.
4.4. Terms of Office. Each officer of the Corporation shall hold office
until his successor is chosen and qualified, or until his earlier resignation or
removal. Any officer elected or appointed by the Board of Directors may be
removed at any time by the Board of Directors.
4.5. Compensation of Officers. The Board of Directors shall have power to
fix the compensation of all officers of the Corporation. It may authorize any
officer, upon whom the power of appointing subordinate officers may have been
conferred, to fix the compensation of such subordinate officers.
4.6. Chairman of the Board. The Chairman of the Board of Directors shall
preside at all meetings of the stockholders and directors, and shall have such
other duties as may be assigned to him from time to time by the Board of
Directors.
4.7. President. Unless the Board of Directors otherwise determines, the
President shall be the chief executive officer and head of the Corporation.
Unless there is a Chairman of the Board, the President shall preside at all
meetings of directors and stockholders. Under the supervision of the Board of
Directors and of the executive committee, the President shall have the general
control and management of its business and affairs, subject, however, to the
right of the Board of Directors and of the executive committee to confer any
specific power, except such as may be by statute exclusively conferred on the
President, upon any other officer or officers of the Corporation. The President
shall perform and do all acts and things incident to the position of
<PAGE>
-10-
President and such other duties as may be assigned to him from time to time by
the Board of Directors or the executive committee.
4.8. Vice-Presidents. The Vice-Presidents shall perform such of the duties
of the President on behalf of the Corporation as may be respectively assigned to
them from time to time by the Board of Directors or by the executive committee
or by the President. The Board of Directors or the executive committee may
designate one of the Vice-Presidents as the Executive Vice-President, and in the
absence or inability of the President to act, such Executive Vice-President
shall have and possess all of the powers and discharge all of the duties of the
President, subject to the control of the board and of the executive committee.
4.9. Treasurer. The Treasurer shall have the care and custody of all the
funds and securities of the Corporation which may come into his hands as
Treasurer, and the power and authority to endorse checks, drafts and other
instruments for the payment of money for deposit or collection when necessary or
proper and to deposit the same to the credit of the Corporation in such bank or
banks or depository as the Board of Directors or the executive committee, or the
officers or agents to whom the Board of Directors or the executive committee may
delegate such authority, may designate, and he may endorse all commercial
documents requiring endorsements for or on behalf of the Corporation. He may
sign all receipts and vouchers for the payments made to the Corporation. He
shall render an account of his transactions to the Board of Directors or to the
executive committee as often as the board or the committee shall require the
same. He shall enter regularly in the books to be kept by him for that purpose
full and adequate account of all moneys received and paid by him on account of
the Corporation. He shall perform all acts incident to the position of
Treasurer, subject to the control of the Board of Directors and of the executive
committee. He shall when requested, pursuant to vote of the Board of Directors
or the executive committee, give a bond to the Corporation conditioned for the
faithful performance of his duties, the expense of which bond shall be borne by
the Corporation.
4.10. Secretary. The Secretary shall keep the minutes of all meetings of
the Board of Directors and of the stockholders; he shall attend to the giving
and serving of all notices of the Corporation. Except as otherwise ordered by
the Board of Directors or the executive committee, he shall attest the seal of
the Corporation upon all contracts and instruments executed under such seal and
shall affix the seal of the Corporation thereto and to all certificates of
shares of capital stock of the Corporation. He shall have charge of the stock
certificate book, transfer book and stock ledger, and such other books and
papers as the Board of Directors or the executive committee
<PAGE>
-11-
may direct. He shall, in general, perform all the duties of Secretary, subject
to the control of the Board of Directors and of the executive committee.
4.11. Assistant Secretary. The Board of Directors or any two of the
officers of the Corporation acting jointly may appoint or remove one or more
Assistant Secretaries of the Corporation. Any Assistant Secretary upon his
appointment shall perform such duties of the Secretary, and also any and all
such other duties as the executive committee or the Board of Directors or the
President or the Executive Vice-President or the Treasurer or the Secretary may
designate.
4.12. Assistant Treasurer. The Board of Directors or any two of the
officers of the Corporation acting jointly may appoint or remove one or more
Assistant Treasurers of the Corporation. Any Assistant Treasurer upon his
appointment shall perform such of the duties of the Treasurer, and also any and
all such other duties as the executive committee or the Board of Directors or
the President or the Executive Vice-President or the Treasurer or the Secretary
may designate.
4.13. Subordinate Officers. The Board of Directors may select such
subordinate officers as it may deem desirable. Each such officer shall hold
office for such period, have such authority, and perform such duties as the
Board of Directors may prescribe. The Board of Directors may, from time to time,
authorize any officer to appoint and remove subordinate officers and to
prescribe the powers and duties thereof.
Article V. - Stock.
------------------
5.1. Stock. Each stockholder shall be entitled to a certificate or
certificates of stock of the Corporation in such form as the Board of Directors
may from time to time prescribe. The certificates of stock of the Corporation
shall be numbered and shall be entered in the books of the Corporation as they
are issued. They shall certify the holder's name and number and class of shares
and shall be signed by both of (i) either the Chairperson or Vice Chairperson of
the Board of Directors, or the President or Vice President, and (ii) any one of
the Treasurer or an Assistant Treasurer or the Secretary or an Assistant
Secretary, and may, but need not, be sealed with the corporate seal of the
Corporation. If such certificate is countersigned (l) by a transfer agent other
than the Corporation or its employee, or, (2) by a registrar other than the
Corporation or its employee, the signature of the officers of the Corporation
and the corporate seal may be facsimiles. In case any officer or officers who
shall have signed, or whose facsimile signature or signatures shall have been
used on, any such certificate or certificates shall cease to be such officer or
officers of the Corporation, whether because of death,
<PAGE>
-12-
resignation or otherwise, before such certificate or certificates shall have
been delivered by the Corporation, such certificate or certificates may
nevertheless be adopted by the Corporation and be issued and delivered as though
the person or persons who signed such certificate or certificates or whose
facsimile signature shall have been used thereon had not ceased to be such
officer or officers of the Corporation.
5.2. Fractional Share Interests. The Corporation may, but shall not be
required to, issue fractions of a share. If the Corporation does not issue
fractions of a share, it shall (i) arrange for the disposition of fractional
interests by those entitled thereto, (ii) pay in cash the fair value of
fractions of a share as of the time when those entitled to receive such
fractions are determined, or (iii) issue scrip or warrants in registered or
bearer form which shall entitle the holder to receive a certificate for a full
share upon the surrender of such scrip or warrants aggregating a full share. A
certificate for a fractional share shall, but scrip or warrants shall not unless
otherwise provided therein, entitle the holder to exercise voting rights, to
receive dividends thereon, and to participate in any of the assets of the
Corporation in the event of liquidation. The Board of Directors may cause scrip
or warrants to be issued subject to the conditions that they shall become void
if not exchanged for certificates representing full shares before a specified
date, or subject to the conditions that the shares for which scrip or warrants
are exchangeable may be sold by the Corporation and the proceeds thereof
distributed to the holders of scrip or warrants, or subject to any other
conditions which the Board of Directors may impose.
5.3. Transfers of Stock. Subject to any transfer restrictions then in
force, the shares of stock of the Corporation shall be transferable only upon
its books by the holders thereof in person or by their duly authorized attorneys
or legal representatives and upon such transfer the old certificates shall be
surrendered to the Corporation by the delivery thereof to the person in charge
of the stock and transfer books and ledgers or to such other person as the
directors may designate by whom they shall be cancelled and new certificates
shall thereupon be issued. The Corporation shall be entitled to treat the holder
of record of any share or shares of stock as the holder in fact thereof and
accordingly shall not be bound to recognize any equitable or other claim to or
interest in such share on the part of any other person whether or not it shall
have express or other notice thereof save as expressly provided by the laws of
Delaware.
5.4. Record Date. For the purpose of determining 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
<PAGE>
-13-
distribution or the 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 (60) days nor less than ten (10) days
before the date of such meeting, nor more than sixty (60) days prior to any
other action. If no such record date is fixed by the Board of Directors, the
record date for determining stockholders entitled to notice of or to vote at a
meeting of stockholders shall be at the close of business on the day next
preceding the day on which notice is given, or, if notice is waived, at the
close of business on the day next preceding the day on which the meeting is
held; the record date for determining stockholders entitled to express consent
to corporate action in writing without a meeting, when no prior action by the
Board of Directors is necessary, shall be the day on which the first written
consent is expressed; and the record date for determining stockholders for any
other purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto. A determination of
stockholders of record entitled to notice of or to vote at any 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.
5.5. Transfer Agent and Registrar. The Board of Directors may appoint one
or more transfer agents or transfer clerks and one or more registrars and may
require all certificates of stock to bear the signature or signatures of any of
them.
5.6. Dividends.
1. Power to Declare. Dividends upon the capital stock of the
Corporation, subject to the provisions of the Certificate of Incorporation,
if any, may be declared by the Board of Directors at any regular or special
meeting, pursuant to law. Dividends may be paid in cash, in property, or in
shares of the capital stock, subject to the provisions of the Certificate
of Incorporation and the laws of Delaware.
2. Reserves. 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.
<PAGE>
-14-
5.7. Lost, Stolen or Destroyed Certificates. No certificates for shares of
stock of the Corporation shall be issued in place of any certificate alleged to
have been lost, stolen or destroyed, except upon production of such evidence of
the loss, theft or destruction and upon indemnification of the Corporation and
its agents to such extent and in such manner as the Board of Directors may from
time to time prescribe.
5.8. Inspection of Books. The stockholders of the Corporation, by a
majority vote at any meeting of stockholders duly called, or in case the
stockholders shall fail to act, the Board of Directors shall have power from
time to time to determine whether and to what extent and at what times and
places and under what conditions and regulations the accounts and books of the
Corporation (other than the stock ledger) or any of them, shall be open to
inspection of stockholders; and no stockholder shall have any right to inspect
any account or book or document of the Corporation except as conferred by
statute or authorized by the Board of Directors or by a resolution of the
stockholders.
Article VI. - Miscellaneous Management Provisions.
-------------------------------------------------
6.1. Checks, Drafts and Notes. All checks, drafts or orders for the
payment of money, and all notes and acceptances of the Corporation shall be
signed by such officer or officers, agent or agents as the Board of Directors
may designate.
6.2. Notices.
1. Notices to directors and stockholders may be (i) in writing and
delivered personally or mailed to the directors or stockholders at their
addresses appearing on the books of the Corporation, (ii) by facsimile
telecommunication, when directed to a number at which the director or
stockholder has consented to receive notice, (iii) by electronic mail, when
directed to an electronic mail address at which the director or stockholder
has consented to receive notice, (iv) by other electronic transmission,
when directed to the director or stockholder. Notice by mail shall be
deemed to be given at the time when the same shall be mailed.
2. Whenever any notice is required to be given under the provisions
of the statutes or of the Certificate of Incorporation of the Corporation
of the Corporation or of these by-laws, a written waiver signed by the
person or persons entitled to said notice, or waiver by electronic
transmission by the person entitled to said notice, whether before or after
the time stated therein or the meeting or action to
<PAGE>
-15-
which such notice relates, shall be deemed equivalent to notice. Attendance
of a person at a meeting shall constitute a waiver of notice of such
meeting except when the person attends a meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any
business because the meeting is not lawfully called or convened.
6.3. Conflict of Interest. No contract or transaction between the
Corporation and one or more of its directors or officers, or between the
Corporation and any other corporation, partnership, association, or other
organization in which one or more of its directors or officers are directors or
officers, or have a financial interest, shall be void or voidable solely for
this reason, or solely because the director or officer is present at or
participates in the meeting of the board of or committee thereof which
authorized the contract or transaction, or solely because his or their votes are
counted for such purpose, if: (i) the material facts as to his relationship or
interest and as to the contract or transaction are disclosed or are known to the
Board of Directors or the committee and the board or committee in good faith
authorizes the contract or transaction by the affirmative vote of a majority of
the disinterested directors, even though the disinterested directors be less
than a quorum; or (ii) the material facts as to his relationship or interest and
as to the contract or transaction are disclosed or are known to the stockholders
of the Corporation entitled to vote thereon, and the contract or transaction as
specifically approved in good faith by vote of such stockholders; or (iii) the
contract or transaction is fair as to the Corporation as of the time it is
authorized, approved or ratified, by the Board of Directors, a committee or the
stockholders. Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or of a committee
which authorizes the contract or transaction.
6.4. Voting of Securities owned by this Corporation. Subject always to the
specific directions of the Board of Directors, (i) any shares or other
securities issued by any other Corporation and owned or controlled by this
Corporation may be voted in person at any meeting of security holders of such
other corporation by the President of this Corporation if he is present at such
meeting, or in his absence by the Treasurer of this Corporation if he is present
at such meeting, and (ii) whenever, in the judgment of the President, it is
desirable for this Corporation to execute a proxy or written consent in respect
to any shares or other securities issued by any other Corporation and owned by
this Corporation, such proxy or consent shall be executed in the name of this
Corporation by the President, without the necessity of any authorization by the
Board of Directors, affixation of corporate seal or countersignature or
attestation by another officer, provided that if the President is unable to
execute such proxy or consent by reason of sickness,
<PAGE>
-16-
absence from the United States or other similar cause, the Treasurer may execute
such proxy or consent. Any person or persons designated in the manner above
stated as the proxy or proxies of this Corporation shall have full right, power
and authority to vote the shares or other securities issued by such other
corporation and owned by this Corporation the same as such shares or other
securities might be voted by this Corporation.
Article VII. - Indemnification.
------------------------------
7.1. Right to Indemnification. Each person who was or is made a party or
is threatened to be made a party to or is otherwise involved in any action, suit
or proceeding, whether civil, criminal, administrative or investigative (a
"Proceeding"), by reason of being or having been a director or officer of the
Corporation or serving or having served at the request of the Corporation as a
director, trustee, officer, employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with
respect to an employee benefit plan (an "Indemnitee"), whether the basis of such
proceeding is alleged action or failure to act in an official capacity as a
director, trustee, officer, employee or agent or in any other capacity while
serving as a director, trustee, officer, employee or agent, shall be indemnified
and held harmless by the Corporation to the fullest extent authorized by the
Delaware General Corporation Law, as the same exists or may hereafter be amended
(but, in the case of any such amendment, only to the extent that such amendment
permits the Corporation to provide broader indemnification rights than permitted
prior thereto) (as used in this Article 7, the "Delaware Law"), against all
expense, liability and loss (including attorneys' fees, judgments, fines, ERISA
excise taxes or penalties and amounts paid in settlement) reasonably incurred or
suffered by such Indemnitee in connection therewith and such indemnification
shall continue as to an Indemnitee who has ceased to be a director, trustee,
officer, employee or agent and shall inure to the benefit of the Indemnitee's
heirs, executors and administrators; provided, however, that, except as provided
in Section 7.2 hereof with respect to Proceedings to enforce rights to
indemnification, the Corporation shall indemnify any such Indemnitee in
connection with a Proceeding (or part thereof) initiated by such Indemnitee only
if such Proceeding (or part thereof) was authorized by the board of directors of
the Corporation. The right to indemnification conferred in this Article 7 shall
be a contract right and shall include the right to be paid by the Corporation
the expenses (including attorneys' fees) incurred in defending any such
Proceeding in advance of its final disposition (an "Advancement of Expenses");
provided, however, that, if the Delaware Law so requires, an Advancement of
Expenses incurred by an Indemnitee shall be made only upon delivery to the
Corporation of an undertaking (an "Undertaking"), by or on behalf of such
Indemnitee, to repay all amounts so advanced if it shall
<PAGE>
-17-
ultimately be determined by final judicial decision from which there is no
further right to appeal (a "Final Adjudication") that such Indemnitee is not
entitled to be indemnified for such expenses under this Article 7 or otherwise.
7.2. Right of Indemnitee to Bring Suit. If a claim under Section 7.1
hereof is not paid in full by the Corporation within sixty days after a written
claim has been received by the Corporation, except in the case of a claim for an
Advancement of Expenses, in which case the applicable period shall be twenty
days, the Indemnitee may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim. If successful in whole or
in part in any such suit, or in a suit brought by the Corporation to recover an
Advancement of Expenses pursuant to the terms of an Undertaking, the Indemnitee
shall be entitled to be paid also the expense of prosecuting or defending such
suit. In (i) any suit brought by the Indemnitee to enforce a right to
indemnification hereunder (but not in a suit brought by the Indemnitee to
enforce a right to an Advancement of Expenses) it shall be a defense that, and
(ii) in any suit by the Corporation to recover an Advancement of Expenses
pursuant to the terms of an Undertaking the Corporation shall be entitled to
recover such expenses upon a Final Adjudication that, the Indemnitee has not met
the applicable standard of conduct set forth in the Delaware Law. Neither the
failure of the Corporation (including its board of directors, independent legal
counsel, or its stockholders) to have made a determination prior to the
commencement of such suit that indemnification of the Indemnitee is proper in
the circumstances because the Indemnitee has met the applicable standard of
conduct set forth in the Delaware Law, nor an actual determination by the
Corporation (including its board of directors, independent legal counsel, or its
stockholders) that the Indemnitee has not met such applicable standard of
conduct, shall create a presumption that the Indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by the
Indemnitee, be a defense to such suit. In any suit brought by the Indemnitee to
enforce a right to indemnification or to an Advancement of Expenses hereunder,
or by the Corporation to recover an Advancement of Expenses pursuant to the
terms of an Undertaking, the burden of proving that the Indemnitee is not
entitled to be indemnified, or to such Advancement of Expenses, under this
Article 7 or otherwise shall be on the Corporation.
7.3. Non-Exclusivity of Rights. The rights to indemnification and to the
Advancement of Expenses conferred in this Article 7 shall not be exclusive of
any other right which any person may have or hereafter acquire under any
statute, the Corporation's Certificate of Incorporation, by-law, agreement, vote
of stockholders or disinterested directors or otherwise.
<PAGE>
-18-
7.4. Insurance. The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the Corporation
or another corporation, partnership, 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 this Article 7 or under the Delaware Law.
7.5. Indemnification of Employees and Agents of the Corporation. The
Corporation may, to the extent authorized from time to time by the board of
directors, grant rights to indemnification, and to the Advancement of Expenses,
to any employee or agent of the Corporation to the fullest extent of the
provisions of this Article 7 with respect to the indemnification and Advancement
of Expenses of directors and officers of the Corporation.
Article VIII. - Amendments.
--------------------------
8.1. Amendments. The by-laws of the Corporation may be altered, amended or
repealed at any meeting of the Board of Directors upon notice thereof in
accordance with these by-laws, or at any meeting of the stockholders by the vote
of the holders of the majority of the stock issued and outstanding and entitled
to vote at such meeting, in accordance with the provisions of the Certificate of
Incorporation of the Corporation and of the laws of Delaware.