BYLAWS
OF
Valhi,
Inc.
a
Delaware Corporation
(Amended
and Restated as of November 6, 2007)
TABLE
OF CONTENTS
Page
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ARTICLE I.
REGISTERED
AGENT AND OFFICES
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Section 1.1.
Registered
Agent and Office
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Section 1.2.
Other
Offices
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ARTICLE II.
MEETINGS
OF STOCKHOLDERS
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Section 2.1.
Place
and Time of Meetings
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Section 2.2.
Business
to be Transacted at Meetings
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Section 2.4
Notice
by Electronic Transmission
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Section 2.5.
List
of Stockholders
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Section 2.8.
Order of Business
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Section 2.9.
Appointment
of Inspectors of Election
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Section 2.10.
Confidential
Voting
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Section 2.11.
Action
Without a Meeting
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Section 2.12.
Fixing
A Record Date
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Section 2.13.
Remote
Communications
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Section 3.1.
Number,
Qualifications and Term of
Office
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Section 3.2.
Nomination
of Director Candidates
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Section 3.5.
Annual
Meeting
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Section 3.6.
Other
Meetings and Notice
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Section 3.9.
Committee
Rules
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Section 3.10.
Telephonic
Meetings
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Section 3.11.
Presumption
of Assent
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Section 3.12.
Action
Without a Meeting
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Section 3.13.
Compensation
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Section 4.2.
Election
and Term of Office
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Section 4.3.
The
Chairman of the Board
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Section 4.4.
The
Vice Chairman of the Board
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Section 4.5.
The
President
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Section 4.6.
The
Chief Executive Officer
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Section 4.7.
The
Chief Financial Officer
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Section 4.8.
Vice
Presidents
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Section 4.9.
The
Secretary and Assistant
Secretary
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Section 4.10.
The
Treasurer and Assistant
Treasurer
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Section 4.12.
Other
Officers, Assistant Officers and
Agents
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Section 4.13.
Normal
Duties and Responsibilities of
Officers
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Page
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ARTICLE V.
INDEMNIFICATION
AND INSURANCE OF DIRECTORS, OFFICERS AND
OTHERS
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Section 5.1.
Indemnification
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Section 5.2.
Advancement
of Expenses
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Section 5.3.
Expenses
of Contested Indemnification
Claims
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Section 5.4.
Indemnification
Not Exclusive
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Section 5.5.
Survival
of Indemnification and Advancement of
Expenses
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Section 5.6.
Employees,
Agents and Others
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Section 5.7.
Contract
Right
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Section 5.9.
Certain
References Under Article V
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ARTICLE VI.
STOCK
CERTIFICATES
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Section 6.3.
Lost
or Destroyed Certificates
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Section 6.4.
Registered
Stockholders
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Section 6.5.
Restrictions
on Transfers of Shares
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ARTICLE VII.
CERTAIN
BUSINESS COMBINATIONS
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ARTICLE VIII.
GENERAL PROVISIONS
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Section 9.3.
Attendance
as Waiver
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Section 9.4.
Omission
of Notice to Stockholders
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AMENDED
AND RESTATED
BYLAWS
OF
Valhi,
Inc.
a
Delaware Corporation
(Amended
and Restated as of November 6, 2007)
ARTICLE
I.
REGISTERED
AGENT AND OFFICES
Section
1.1.
Registered
Agent and Office
. The registered agent and office of
the corporation shall be such person or entity and located at such place within
the state of Delaware as the board of directors may from time to time
determine.
Section 1.2.
Other
Offices.
The corporation may also have offices at such
other places, both within and without the state of Delaware, as the
corporation’s board of directors may from time to time determine or the business
of the corporation may require.
ARTICLE
II.
MEETINGS
OF STOCKHOLDERS
Section 2.1.
Place
and Time of Meetings.
All meetings of the stockholders
shall be held on such date and at such time and place, within or without the
state of Delaware, as shall be determined, from time to time, by the board
of
directors or by means of remote communication at the discretion of the board
of
directors, as stated in the notice and call of the meeting or a duly executed
waiver of notice thereof. The chairman of the board, the president,
the chief executive officer, the board of directors or the holders of at least
15 percent of the shares of the corporation that would be entitled to vote
at
such a meeting may call special meetings of stockholders. If a
special meeting is called by any person or persons other than the board of
directors, the request shall be in writing, specifying the time of such meeting
and the general nature of the business proposed to be transacted, and shall
be
delivered personally or sent by registered mail or by facsimile transmission
to
the chairman of the board, the president, the chief executive officer or the
secretary of the corporation. Nothing contained in this Section shall
be construed as limiting, fixing, or affecting the time when a meeting of
stockholders called by action of the board of directors may be
held.
Section 2.2.
Business
to be Transacted at Meetings
. At a meeting of the
stockholders, only such business shall be conducted as shall have been properly
brought before the meeting. To be properly brought before a special
meeting, business must be specified in the notice of the meeting (or any
supplement thereto). To be properly brought before an annual meeting,
business must be
(a)
specified in the notice of the meeting (or
any supplement thereto) given by or at the direction of the board of directors,
(b)
otherwise properly brought before the meeting by or at the
direction of the board of directors or
(c)
otherwise
properly brought before the meeting by a stockholder. For business to
be properly brought before an annual meeting by a stockholder, the stockholder
must, in addition to any requirements imposed by federal securities law or
other
applicable laws, have given timely notice thereof in writing to the secretary
of
the corporation. To be timely for an annual meeting, a stockholder’s
notice must be delivered to or mailed and received at the principal executive
offices of the corporation, no later than
(i)
if the
corporation mailed notice of the last annual meeting or publicly disclosed
the
date of such meeting and the annual meeting for the current year has not changed
more than thirty days from such date (as if in the current year), forty-five
days before the earlier of the date (as if in the current year) of such mailing
or public disclosure or
(ii)
otherwise ninety days prior to the
annual meeting. A stockholder’s notice to the secretary with regard
to an annual meeting shall set forth as to each order of business that the
stockholder proposes to bring before the meeting
(a)
a brief
description of such business desired to be brought before the meeting and the
reasons for conducting such business at the annual meeting,
(b)
the name and address, as they appear on the corporation’s books, of the
stockholder proposing such business,
(c)
the class and number
of shares of the corporation that are beneficially owned by the stockholder
and
(d)
any material interest of the stockholder in such
business. The chairman of the meeting may refuse to bring before a
meeting any business not properly brought before the meeting in compliance
with
this section.
Section 2.3.
Notice.
Notice
of the time, place and means of remote communication of an annual meeting of
stockholders and notice of the time, place, means of remote communication and
purpose or purposes of a special meeting of the stockholders shall be given
not
less than 10, nor more than 60, days prior to the meeting to each stockholder
of
record of the corporation entitled to vote at such meeting. If
mailed, such notice shall be deemed to be delivered when deposited in the United
States mail, postage paid, addressed to the stockholder’s address appearing on
the corporate books of the corporation.
Section 2.4.
Notice
by Electronic Transmission.
Without limiting the manner
by which notice otherwise may be given effectively to stockholders, any notice
to stockholders given by the corporation under any applicable law, the
certificate of incorporation or these bylaws shall be effective if given by
a
form of electronic transmission consented to by the stockholder to whom the
notice is given. Any such consent shall be revocable by the
stockholder by written notice to the corporation. Notice by
electronic transmission shall be deemed
given:
(a)
if by facsimile telecommunication,
when directed to a number at which the stockholder has consented to receive
notice;
(b)
if by electronic mail, when directed to an
electronic mail address at which the stockholder has consented to receive
notice;
(c)
if by a posting on an electronic network
together with separate notice to the stockholder of such specific posting,
upon
the later of
(i)
such posting and
(ii)
the giving of such separate notice; and
(d)
if by any other form of electronic transmission, when
directed to the stockholder.
Section 2.5.
List
of Stockholders.
The officer or agent having charge of
the stock transfer books of the corporation shall make, at least 10 days before
every meeting of the stockholders, a complete list of the stockholders entitled
to vote at such meeting arranged in alphabetical order, specifying the address
of and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting for a period of at least
10
days prior to the meeting on a reasonably accessible electronic network or,
during ordinary business hours, at the principal place of business of the
corporation. 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. If the meeting of stockholders is to be
held solely by means of remote communication, then the list shall also be open
to the examination of any stockholder during the whole time of the meeting
on a
reasonably accessible electronic network, and the information required to access
such list shall be provided with the notice of the meeting. The
original stock transfer books shall be the only evidence as to who are the
stockholders entitled to examine such list or transfer book or to vote at any
such meeting of stockholders.
Section 2.6.
Quorum.
The
holders of a majority of the votes entitled to be cast at any meeting of
stockholders, counted as a single class if there be more than one class of
stock
entitled to vote at such meeting, present in person or represented by proxy,
shall constitute a quorum at all meetings of the stockholders except as
otherwise provided by statute or by the certificate of
incorporation. Once a quorum is present at a meeting of the
stockholders, the stockholders represented in person or by proxy at the meeting
may conduct such business as may be properly brought before the meeting until
it
is adjourned, and the subsequent withdrawal from the meeting by any stockholder
or the refusal of any stockholder represented in person or by proxy to vote
shall not affect the presence of a quorum at the meeting. If a quorum
is not present, the chairman of the meeting or the holders of the shares present
in person or represented by proxy at the meeting, and entitled to vote thereat,
shall have the power, by the affirmative vote of the holders of a majority
of
such shares, to adjourn the meeting to another time and/or
place. Unless the adjournment is for more than thirty days or unless
a new record date is set for the adjourned meeting, no notice of the adjourned
meeting need be given to any stockholder provided that the time and place of
the
adjourned meeting were announced at the meeting at which the adjournment was
taken. At the adjourned meeting the corporation may transact any
business that might have been transacted at the original meeting.
Section 2.7.
Proxies.
Each
stockholder entitled to vote at a meeting of stockholders or to express consent
or dissent to corporate action in writing without a meeting may authorize
another person or persons to act for him by proxy. A telegram, telex,
cablegram or reliable electronic transmission executed or duly authorized by
the
stockholder, or a photographic, photostatic, facsimile or reliable reproduction
of a writing executed or duly authorized by the stockholder shall be treated
as
an execution in writing for purposes of this section. No proxy shall
be valid after three years from the date of its execution unless otherwise
provided in the proxy. Each proxy shall be revocable unless the proxy
form conspicuously states that the proxy is irrevocable and the proxy is coupled
with an interest.
Section 2.8.
Order of Business.
The
order of business at each such stockholders meeting shall be as determined
by
the chairman of the meeting. One of the following persons, in the
order in which they are listed (and in the absence of the first, the next,
and
so on), shall serve as chairman of the meeting: the chairman of the
board, vice chairman of the board, president, the chief executive officer,
vice
presidents (in the order of their seniority if more than one) and
secretary. The chairman of the meeting shall have the right and
authority to prescribe such rules, regulations and procedures and to do all
such
acts and things as are necessary or desirable for the proper conduct of the
meeting, including, without limitation, the establishment of procedures for
the
maintenance of order and safety, limitations on the time allotted to questions
or comments on the affairs of the corporation, restrictions on entry to such
meeting after the time prescribed for the commencement thereof, and the opening
and closing of the voting polls.
Section 2.9.
Appointment
of Inspectors of Election.
The board of directors shall
appoint one or more inspectors of election (“inspectors”) to act at such meeting
or any adjournment or postponement thereof and make a written report
thereof. The board of directors may designate one or more persons as
alternate inspectors to replace any inspector who fails to act. If no
inspector or alternate is so appointed or if no inspector or alternate is able
to act, the chairman of the board, the vice chairman of the board, the president
or the chief executive officer shall appoint one or more inspectors to act
at
such meeting. Each inspector, before entering upon the discharge of
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 may be directors, officers or employees of
the corporation.
Section 2.10.
Confidential
Voting.
All proxies, ballots and vote tabulations that
identify the particular vote of a stockholder shall be kept confidential, except
that disclosure may be made
(a)
to allow the inspectors to
certify the results of the vote;
(b)
as necessary to meet
applicable legal requirements, including the pursuit or defense of judicial
actions; or
(c)
when expressly requested by such
stockholder. Nothing in this section shall prohibit the inspector
from making available to the corporation, during the period prior to any annual
or special meeting, information as to which stockholders have not voted and
periodic status reports on the aggregate vote.
Section 2.11.
Action
Without a Meeting.
(a) Any
action to be taken at a meeting of the stockholders, may be taken without a
meeting, without prior notice, and without a vote, if a consent or consents
in
writing, setting forth the action so taken, shall be signed by the holder or
holders of shares having not less than the minimum number of votes that would
be
necessary to take such action at a meeting at which the holders of all shares
entitled to vote on the action were present and voted.
(b) Every
written consent of the stockholders shall bear the date of signature of each
stockholder who signs the consent. No written consent shall be
effective to take the action that is the subject of the consent unless, within
60 days after the date of the earliest dated consent delivered to the
corporation as provided below, a consent or consents signed by the holder or
holders of shares having not less than the minimum number of votes that would
be
necessary to take the action that is the subject of the consent are delivered
to
the corporation by delivery to its registered office, its principal place of
business, or an officer or agent of the corporation having custody of the books
in which proceedings of meetings of the stockholders are
recorded. Such delivery shall be made by hand or by certified or
registered mail, return receipt requested, and in the case of delivery to the
corporation’s principal place of business, shall be addressed to the president
or chief executive officer of the corporation.
(c) Without
limitation, a telegram, cablegram or electronic transmission by a stockholder,
or a photographic, photostatic, facsimile or other reliable reproduction of
a
writing signed or transmitted by a stockholder, shall be regarded as signed
by
the stockholder for the purposes of this section.
(d) Prompt
notice of the taking of any action by stockholders without a meeting by less
than unanimous written consent shall be given to those stockholders who did
not
consent in writing to the action and who, if the action had been taken at a
meeting, would have been entitled to notice of the meeting if the record date
for such meeting had been the date that written consents signed by a sufficient
number of holders to take the action were delivered to the
corporation.
Section 2.12.
Fixing
A Record Date
. In order that the corporation may
determine the stockholders entitled to notice of or to vote at any meeting
of
stockholders or any adjournment thereof, or entitled 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 60 nor less than 10 days
before the date of such meeting. With respect to corporate action in
writing without a meeting, such record date shall not precede the date upon
which the resolution fixing the record date is adopted by the board of directors
nor more than 10 days after the date upon which the resolution fixing the record
date is adopted by the board of directors. With respect to any other
action, such record date shall not precede the date upon which the resolution
fixing the record date is adopted nor more than 60 days prior to such
action.
If
the
board of directors does not so fix a record date:
(a) 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.
(b) 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 required under the laws of the state of Delaware, shall be
the
first date on which a signed written consent is delivered to the corporation
in
accordance with the requirements of such law.
(c) 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
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 2.13.
Remote
Communications
. If authorized by the board of directors
in its sole discretion, and subject to such guidelines and procedures as the
board of directors may adopt, stockholders and proxyholders not physically
present at a meeting of stockholders may, by means of remote communication,
(a)
participate in a meeting of stockholders, and
(b)
be deemed present in person and vote at
a meeting of
stockholders whether such meeting is to be held at a designated place or solely
by means of remote communication, provided that
(i)
the
corporation shall implement reasonable measures to verify that each person
deemed present and permitted to vote at the meeting by means of remote
communication is a stockholder or proxyholder,
(ii)
the
corporation shall implement reasonable measures to provide such stockholders
and
proxyholders a reasonable opportunity to participate in the meeting and to
vote
on matters submitted to the stockholders, including an opportunity to read
or
hear the proceedings of the meeting substantially concurrently with such
proceedings, and
(iii)
if any stockholder or proxyholder
votes or takes other action at the meeting by means of remote communication,
a
record of such vote or other action shall be maintained by the
corporation.
Section 2.14.
Minutes
. The
stockholders shall cause regular minutes of their proceedings to be kept, and
such minutes shall be placed in the minute proceedings of the corporation (which
may be maintained in paper or electronic form).
ARTICLE
III.
DIRECTORS
Section 3.1.
Number,
Qualifications and Term of Office.
The business and
affairs of the corporation shall be managed by a board of directors. Subject
to
the preferential voting rights of the holders of preferred stock or any other
class of capital stock of the corporation or any series of any of the foregoing
that is then outstanding, the board of directors shall consist of one or more
members. The number of members of the board of directors shall be
fixed from time to time
(a)
by the board of directors
pursuant to a resolution adopted by a majority of the entire board of directors
or
(b)
by the stockholders pursuant to a resolution
adopted by a majority of the holders of shares of the corporation entitled
to
vote for the election of directors;
provided, however
, that if the
stockholders have acted to fix the number of directors, any action by the board
of directors to fix another number shall only become effective on or after
the
first annual meeting of stockholders that follows such stockholder
action. Each director shall be elected at the annual meeting of the
stockholders, except as provided in
Section 3.4
, and each
director elected shall hold office until the next annual meeting of stockholders
and until his or her successor is duly elected and qualified or until his or
her
earlier death, resignation or removal. No reduction of the authorized
number of directors shall have the effect of removing any director before that
director’s term expires.
Section 3.2.
Nomination
of Director Candidates.
Subject to the preferential
voting rights of the holders of preferred stock or any other class of capital
stock of the corporation or any series of any of the foregoing that is then
outstanding, nominations for the election of directors may be made by the board
of directors or by any stockholder entitled to vote for the election of
directors. Any stockholder entitled to vote for the election of a
director at a meeting may nominate persons for whom such stockholder may vote
only if written notice of such stockholder’s intent to make such nomination is
given, either by personal delivery or by United States mail, postage prepaid,
to
the secretary of the corporation not later than
(a)
with
respect to an election to be held at an annual meeting of stockholders,
(i)
if the corporation mailed notice of the last annual meeting
or publicly disclosed the date of such meeting and the annual meeting for the
current year has not changed more than thirty days from such date (as if in
the
current year), forty-five days before the earlier of the date (as if in the
current year) of such mailing or public disclosure or
(ii)
otherwise ninety days prior to the annual meeting and
(b)
with
respect to an election to be held at a special meeting of stockholders for
the
election of directors, the close of business on the tenth day following the
date
on which notice of such meeting is first given to stockholders. Each
such notice shall set forth:
(a)
the name and
address of the stockholder who intends to make the nomination and of the person
or persons intended to be nominated;
(b)
a representation that
the stockholder is a holder of record of stock of the corporation entitled
to
vote at such meeting and intends to appear in person or by proxy at the meeting
to nominate the person or persons specified in the notice;
(c)
a description of all arrangements or understandings between the stockholder
and
each nominee and any other person or persons (naming such person or persons)
pursuant to which the nomination or nominations are to be made by the
stockholder;
(d)
such other information regarding each nominee
proposed by such stockholder as would have been required to be included in
a
proxy statement filed pursuant to the proxy rules of the Securities and Exchange
Commission had such requirements been applicable and each nominee been
nominated, or intended to be nominated, by the board of directors; and
(e)
the consent of each nominee to serve as a director of the
corporation if so elected. The chairman of the meeting may refuse to
acknowledge the nomination of any person not made in compliance with this
section.
Section 3.3.
Removals.
Subject
to the preferential voting rights of the holders of preferred stock or any
other
class of capital stock of the corporation or any series of any of the foregoing
that is then outstanding at any meeting of stockholders called expressly for
the
purpose of removing a director or directors, each director may be removed from
office at any time by the stockholders, with or without cause, by the
affirmative vote of the holders of at least a majority of the voting power
of
all of the shares of the corporation entitled to vote for the election of such
director.
Section 3.4.
Vacancies.
Subject
to the preferential voting rights of the holders of preferred stock or any
other
class of capital stock of the corporation or any series of any of the foregoing
that is then outstanding and except as otherwise required by law, all vacancies
in the board of directors, whether caused by resignation, death or otherwise,
may be filled by a majority of the remaining directors though less than a
quorum;
provided, however
, that any vacancy resulting from an increase
in the number of directors that is the result of a resolution adopted by the
stockholders of the corporation may be filled by the stockholders of the
corporation in accordance with the laws of the state of Delaware, any other
applicable provisions of the certificate of incorporation and these
bylaws. Each director so chosen shall hold office for the unexpired
term of his or her predecessor and until his or her successor is elected and
qualified or until his or her earlier death, resignation or
removal.
Section 3.5.
Annual
Meeting.
The annual meeting of the board of directors
may be held without notice immediately after the annual meeting of stockholders
at the location of the stockholders’ meeting. If not held immediately
after the annual meeting of the stockholders, the annual meeting of the board
of
directors shall be held as soon thereafter as may be convenient.
Section 3.6.
Other
Meetings and Notice.
Regular meetings of the board of
directors may be held with or without notice at such time and at such place
as
shall from time to time be determined by the board of
directors. Special meetings of the board of directors may be called
by or at the request of the chairman of the board, the vice chairman of the
board, the president or the or chief executive officer and shall be called
by
the chairman of the board on the written request of a majority of directors,
in
each case on at least twenty-four hours notice to each director.
Section 3.7.
Quorum.
A
majority of the total number of directors shall be necessary at all meetings
to
constitute a quorum for the transaction of business. If a quorum
shall not be present at any meeting of the board of directors, the directors
present thereat may adjourn the meeting from time to time, without notice other
than announcement at the meeting, until a quorum shall be present. At
such adjourned meeting at which a quorum shall be present, any business may
be
transacted that might have been transacted at the meeting as originally notified
and called.
Section 3.8.
Committees.
Standing
or temporary committees consisting of one or more directors of the corporation
may be appointed by the board of directors from time to time, and the board
of
directors may from time to time invest such committees with such powers as
it
may see fit, subject to limitations imposed by statute and such conditions
as
may be prescribed by the board of directors. An executive committee
may be appointed by resolution passed by a majority of the entire board of
directors and if appointed it shall have all the powers provided by statute,
except as specially limited by the board of directors. All committees
so appointed shall keep regular minutes of the transactions of their meetings
and shall cause them to be recorded in books kept for that purpose in the office
of the corporation, and shall report the same to the board of directors at
its
next meeting. The board of directors may designate one or more
directors as alternate members of any committee, who may replace any absent
or
disqualified member at any meeting of the committee. The board shall
have the power at any time to change the membership of, to increase or decrease
the membership of, to fill all vacancies in and to discharge any committee
of
the board, or any member thereof, either with or without cause.
Section 3.9.
Committee
Rules.
Each committee of the board of directors may fix
its own rules of procedure and shall hold its meetings as provided by such
rules, except as may otherwise be provided by the resolution of the board of
directors designating such committee, but in all cases the presence of at least
a majority of the members of such committee shall be necessary to constitute
a
quorum.
Section 3.10.
Telephonic
Meetings.
Members of the board of directors or any
committee designated by the board of directors may participate in any meeting
of
the board of directors or such committee by means of a conference telephone
or
other communications equipment by means of which all persons participating
in
the meeting can hear each other. Participation in such a meeting
shall constitute presence in person at such meeting.
Section 3.11.
Presumption
of Assent.
A director of the corporation who is present
at a meeting of the board of directors or any committee thereof at which action
on any corporate matter is taken shall be deemed to have assented to the action
taken unless his or her dissent shall be entered in the minutes of the meeting
or unless he or she shall file his or her written dissent to such action with
the person acting as the secretary of the meeting before the adjournment thereof
or shall forward such dissent by registered mail to the secretary of the
corporation immediately after the adjournment of the meeting. Such
right to dissent shall not apply to a director who voted in favor of such
action.
Section 3.12.
Action
Without a Meeting.
Any action required or permitted to
be taken at any meeting of the board of directors or of any committee thereof
may be taken without a meeting if all members of the board of directors or
such
committee, as the case may be, consent thereto in writing or electronic
transmission and the writing or writings or electronic transmission or
transmissions are filed with the minutes of proceedings of the board of
directors or committee. Action taken pursuant to such written consent
of the board of directors or of any committee thereof shall have the same force
and effect as if taken by the board of directors or the committee, as the case
may be, at a meeting thereof.
Section 3.13.
Compensation.
The
board of directors shall have the authority to fix the compensation of
directors.
Section 3.14.
Minutes
. The
board of directors shall cause to be kept regular minutes of its proceedings,
and such minutes shall be placed in the minute proceedings of the corporation
(which may be maintained in paper or electronic form).
ARTICLE
IV.
OFFICERS
Section 4.1.
Number
.
The
officers of the corporation shall be a chairman of the board, a vice chairman
of
the board, a president, one or more vice presidents, a secretary, a treasurer,
and such other officers and assistant officers as the board of directors may,
by
resolution, appoint. Any two or more offices may be held by the same
person. In its discretion, the board of directors may choose not to
fill any office for any period as it may deem advisable, except the offices
of
president and secretary.
Section 4.2.
Election
and Term of Office
.
The officers of
the corporation shall be elected annually by the board of directors at the
annual meeting of the board of directors. If the election of officers
shall not be held at such meeting, such election shall be held as soon
thereafter as may be convenient. Each officer shall hold office until
the next annual meeting of the board of directors and until his or her successor
is duly elected and qualified or until his or her earlier death, resignation
or
removal as hereinafter provided.
Section 4.3.
The
Chairman of the Board
.
The chairman of
the board shall preside at all meetings of the stockholders and
directors. He or she 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 connection therewith, shall
be authorized to delegate to the vice chairman of the board, president and
other
officers such of his or her powers and duties as chairman of the board at such
time and in such manner as he or she may deem to be advisable. The
chairman of the board shall be an ex officio member of all standing committees
and he or she shall have such other powers and duties as may from time to time
be assigned by the board of directors.
Section 4.4.
The
Vice Chairman of the Board
.
The vice
chairman of the board shall assist the chairman of the board in the management
of the business of the corporation, and, in the absence or disability of the
chairman of the board, shall preside at all meetings of the stockholders and
the
board of directors and exercise the other powers and perform the other duties
of
the chairman of the board or designate the executive officers of the corporation
by whom such other powers shall be exercised and other duties
performed. The vice chairman of the board shall be an ex officio
member of all standing committees and he or she shall have such other powers
and
duties as may from time to time be assigned by the board of directors or by
the
chairman of the board. In addition to the foregoing, the vice
chairman of the board shall have such other powers, duties and authority as
may
be set forth elsewhere in these bylaws.
Section 4.5.
The
President
.
The president shall be the
corporation’s chief operating officer unless otherwise determined by the board
of directors. The president shall assist the chairman of the board in
the management of the business of the corporation, and, in the absence or
disability of the chairman of the board and the vice chairman of the board,
shall preside at all meetings of the stockholders and the board of directors
and
exercise the other powers and perform the other duties of the chairman of the
board or designate the executive officers of the corporation by whom such other
powers shall be exercised and other duties performed. The president
shall be an ex officio member of all standing committees and he or she shall
have such other powers and duties as may from time to time be assigned by the
board of directors or by the chairman of the board. In addition to
the foregoing, the president shall have such other powers, duties, and authority
as may be set forth elsewhere in these bylaws. If the board of
directors does not elect a chairman or vice chairman of the board, the president
shall also have the duties and responsibilities, and exercise all functions,
of
the chairman and the vice chairman of the board as provided in these
bylaws.
Section 4.6.
The
Chief Executive Officer
.
The board of
directors may designate an individual, whether or not such individual is an
officer of the corporation, to serve as the chief executive officer of the
corporation. The chief executive officer shall have the duties and
responsibilities, and exercise all functions, as the board of directors may
determine.
Section 4.7.
The
Chief Financial Officer
.
The board of
directors may designate an individual, whether or not such individual is an
officer of the corporation, to serve as the chief financial officer of the
corporation. The chief financial officer shall have the duties and
responsibilities, and exercise all functions, as the board of directors may
determine.
Section 4.8.
Vice
Presidents
.
Each vice president shall
have such powers and discharge such duties as may be assigned from time to
time
by the chairman of the board, the vice chairman of the board or the
president. During the absence or disability of the president, first
the chief executive officer and in the absence or disability of the chief
executive officer, one such vice president, when designated by the board of
directors, shall exercise all the functions of the president.
Section 4.9.
The
Secretary and Assistant Secretary
.
The
secretary or the chairman of the board shall issue notices for all
meetings. The secretary shall keep minutes of all meetings of the
board of directors, the committees thereof and the stockholders, shall have
charge of the seal and the corporate books and shall make such reports and
perform such other duties as are incident to the office, and perform such other
duties designated or properly required by the chairman of the board, the vice
chairman of the board, the president or the chief executive
officer. The secretary shall keep, or cause to be kept, at the
principal executive office of the corporation or at the office of the
corporation’s transfer agent or registrar, a share register, or a duplicate
share register, showing the names of all stockholders and their addresses,
the
number and classes of shares held by each, the number and date of certificates
evidencing such shares, and the number and date of cancellation of every
certificate surrendered for cancellation. The assistant secretary
shall be vested with the same powers and duties as the secretary, and any act
may be done or duty performed by the assistant secretary with like effect as
though done or performed by the secretary. The assistant secretary
shall have such other powers and perform such other duties as may be assigned
by
the chairman of the board, the vice chairman of the board, the president or
the
chief executive officer.
Section 4.10.
The
Treasurer and Assistant Treasurer
.
The
treasurer shall have the custody of all moneys and securities of the corporation
and shall keep regular books of account. He or she shall disburse the
funds of the corporation in payment of just demands against the corporation,
or
as may be ordered by the chairman of the board, the vice chairman of the board,
the president, the chief executive officer or by the board of directors, taking
proper vouchers for such disbursements, and shall render to the board of
directors from time to time as may be required of him or her, an account of
all
transactions as treasurer and of the financial condition of the
corporation. The treasurer shall perform all duties incident to the
office, and perform such other duties designated or properly required by the
chairman of the board, the vice chairman of the board, the president or the
chief executive officer. The assistant treasurer shall be vested with the same
powers and duties as the treasurer, and any act may be done, or duty performed
by the assistant treasurer with like effect as though done or performed by
the
treasurer. The assistant treasurer shall have such other powers and
perform such other duties as may be assigned by the chairman of the board,
the
vice chairman of the board, the president or the chief executive
officer.
Section 4.11.
Vacancies
.
Vacancies
in any office arising from any cause may be filled by the directors for the
unexpired portion of the term with a majority vote of the directors then in
office. In the case of the absence or inability to act of any officer
of the corporation and of any person herein authorized to act in his or her
place, the board of directors may from time to time delegate the powers or
duties of such officer to any other officer or any director or other person
whom
it may select.
Section 4.12.
Other
Officers, Assistant Officers and
Agents
.
Officers, assistant officers,
and agents, if any, other than those whose duties are provided for in these
bylaws shall hold their offices for such terms and shall exercise such powers
and perform such duties as the board of directors may determine.
Section 4.13.
Normal
Duties and Responsibilities of
Officers
.
Unless otherwise provided in
these bylaws or the board of directors decides otherwise, if an officer title
is
one commonly used for officers of a business corporation formed under the
Delaware General Corporation Law or any successor or similar statute, the
assignment of such title shall constitute the delegation to such officer of
the
authority and duties that are normally associated with that office, subject
to
any specific delegation of authority and duties made to such officer by the
board of directors.
ARTICLE
V.
INDEMNIFICATION
AND INSURANCE OF DIRECTORS, OFFICERS AND OTHERS
Section 5.1.
Indemnification.
To
the fullest extent permitted by Delaware law, the corporation shall indemnify
any and all officers and directors of the corporation from and against all
expenses (including attorneys’ fees), liabilities or other matters arising out
of their status as such or their acts, omissions or services rendered by such
persons in such capacities or otherwise while serving at the request of the
corporation in any other capacity. Unless specifically addressed in a
repeal or amendment of Delaware law with regard to a corporation’s ability to
indemnify any such person, no such repeal or amendment shall adversely affect
any indemnification rights of any such person existing at the time of such
repeal or amendment.
Section 5.2.
Advancement
of Expenses.
Expenses (including attorneys’ fees)
incurred by a director or officer who was, is or is threatened to be made a
named defendant or respondent in a proceeding by reason of his or her status
as
a director or officer of the corporation or services rendered by such persons
in
such capacities or otherwise at the request of the corporation or incurred
by a
director or officer for prosecuting a claim under
Section 5.3
shall be paid by the corporation in advance of
the final disposition of such proceeding upon receipt of a written undertaking
by or on behalf of the director or officer to repay such amount if it shall
ultimately be determined that he or she is not entitled to be indemnified by
the
corporation as authorized in this Article.
Section 5.3.
Expenses
of Contested Indemnification Claims.
If a claimant
makes a claim on the corporation under
Section 5.1
or
5.2
and the corporation does not pay such
claim in full within
thirty days after it has received such written claim, the claimant may at any
time thereafter bring suit against the corporation to recover the unpaid amount
of the claim and, if successful in whole or in part, the claimant shall also
be
entitled to be paid also the expenses of prosecuting such claim. It
shall be a defense to any such action that such indemnification of advancement
of costs of defense are not permitted under the General Corporation Law of
Delaware or other applicable law, but the burden of proving such defense shall
be on the corporation. Neither the failure of the corporation
(including its board of directors or any committee thereof, special legal
counsel or stockholders) to have made its determination prior to the
commencement of such action that indemnification of, or advancement of costs
of
defense to, the claimant is permissible in the circumstances nor an actual
determination by the corporation (including its board of directors or any
committee thereof, special legal counsel, or stockholders) that such
indemnification or advancement is not permissible, shall be a defense to the
action or create a presumption that such indemnification or advancement is
not
permissible.
Section 5.4.
Indemnification
Not Exclusive.
The indemnification and advancement of
expenses provided by, or granted pursuant to, this Article shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any other bylaw, agreement, vote
of stockholders or disinterested directors or otherwise, both as to action
in
his or her official capacity and as to action in another capacity while holding
such office.
Section 5.5.
Survival
of Indemnification and Advancement of Expenses.
The
indemnification and advancement of expenses provided by, or granted pursuant
to,
this Article shall continue as to a person who has ceased to be a director
or
officer and shall inure to the benefit of the heirs, executors and
administrators of such person.
Section 5.6.
Employees,
Agents and Others.
To the fullest extent of Delaware
law, the corporation may grant rights of indemnification and advancement of
expenses to any person who is not at the time a current director or officer
of
the corporation.
Section 5.7.
Contract
Right.
Each of the rights of indemnification and
advancement of expenses provided by, or granted pursuant to, this Article shall
be a contract right that will survive the termination of any person’s service as
a director or officer and any repeal or amendment of the provisions of this
Article shall not adversely affect any such right of any person existing at
the
time of such repeal or amendment with respect to any act or omission occurring
prior to the time of such repeal or amendment, and further, shall not apply
to
any proceeding, irrespective of when the proceeding is initiated, arising from
the service of such person prior to such repeal or amendment.
Section 5.8.
Insurance.
To
the fullest extent of Delaware law, the corporation shall have power to purchase
and maintain insurance on behalf of any person, including one 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 enterprise against any liability asserted against him or her and
incurred by him or her in any such capacity, or arising out of his or her status
as such, whether or not the corporation would have the power to indemnify him
or
her against such liability under the provisions of this Article or Delaware
law.
Section 5.9.
Certain
References Under Article V.
For purposes of this
Article, references to “
the corporation
,” “
other enterprise
”
and “
serving at the request of the corporation
” shall have the meanings
given such terms in Section 145 of the Delaware General Corporation Law or
any
successor or similar statute. As used herein, the term
“
proceeding
” means any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative, arbitrative or
investigative, any appeal in such an action, suit or proceeding, and any inquiry
or investigation that could lead to such an action, suit or
proceeding.
ARTICLE
VI.
STOCK
CERTIFICATES
Section 6.1.
Form
. The
shares of stock of the corporation shall be represented by certificates, or
shall be uncertificated shares. Every holder of uncertificated shares
of the corporation shall be entitled upon request to have a stock certificate
issued to such holder signed by the chairman of the board, the president, the
chief executive officer or any vice president and the secretary, any assistant
secretary, the treasurer or any assistant treasurer, certifying to the number
of
shares owned by such stockholder. Where, however, such certificate is
signed by a transfer agent or an assistant transfer agent or by a transfer
clerk
acting on behalf of the corporation, and a registrar or by an agent acting
in
the dual capacity of transfer agent and registrar, the signatures of any of
the
above-named officers may be facsimile signatures. In the event that
any officer who has signed, or whose facsimile signature has been used on,
a
certificate ceases to be an officer before the certificate has been delivered,
such certificate may nevertheless be adopted and issued and delivered by the
corporation, as though the officer who signed such certificate or certificates,
or whose facsimile signature or signatures shall have been used thereon, had
not
ceased to be such officer of the corporation. All certificates for
shares shall be consecutively numbered or otherwise identified. The
name of the person to whom either certificated or uncertificated shares are
issued, with the number of shares and date of issue, shall be entered on the
books of the corporation. Notwithstanding any other provision in
these bylaws, the corporation may adopt a system of issuance, recordation and
transfer of its shares by electronic or other means not involving any issuance
of certificates, including provisions for notice to purchasers in substitution
for any required statements or certificates, and as may be required by
applicable law, which system has been approved by the U.S. Securities and
Exchange Commission. Any system so adopted shall not become effective
as to issued and outstanding certificated securities until the certificates
therefor have been surrendered to the corporation.
Section 6.2.
Transfers.
Transfers
of stock shall be made only upon the transfer books of the corporation or
respective transfer agents designated to transfer the several classes of stock
and, in the case of shares represented by a certificate or certificates, upon
the surrender of a properly endorsed certificate or certificates for a like
number of shares.
Section 6.3.
Lost
or Destroyed Certificates.
The corporation may issue a
new stock certificate in place of any certificate theretofore issued by it,
alleged to have been lost, stolen or destroyed, and the corporation shall,
except as otherwise determined by the board of directors, the chairman of the
board, the president, the chief executive officer any vice president or other
authorized officer, require the owner of the lost, stolen or destroyed
certificate, or his or her legal representative, to give the corporation a
bond
sufficient to indemnify it against any claim that may be made against it on
account of the alleged loss, theft or destruction of any such certificate or
the
issuance of such new certificate.
Section 6.4.
Registered
Stockholders.
The corporation shall be entitled to
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 shares on the part of another person, whether or not the
corporation shall have express or other notice thereof,
except
as
otherwise provided by the laws of the state of Delaware.
Section 6.5.
Restrictions
on Transfers of Shares.
Notice of any restriction on
the transfer of shares of the corporation’s stock shall be placed on each
certificate of stock issued, or in the case of uncertificated shares, contained
in the notice sent to the registered holder of such shares in accordance with
the laws of the state of Delaware.
ARTICLE
VII.
CERTAIN
BUSINESS COMBINATIONS
The
provision of Section 203 of the Delaware General Corporation Law shall not
apply
to the corporation.
This
Article VII shall be amended, altered or repealed only as provided in Section
203 of the Delaware General Corporation Law.
ARTICLE
VIII.
GENERAL
PROVISIONS
Section 8.1.
Dividends.
Dividends
upon the capital stock of the corporation, subject to any applicable provisions
of the certificate of incorporation, 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
applicable provisions of the certificate of incorporation. 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 in the best interest of the corporation, and the directors may
modify or abolish any such reserve in the manner in which it was
created.
Section 8.2.
Accounts.
The
chairman of the board, vice chairman of the board, president, the chief
executive officer or any vice president is authorized for and on behalf of
the
corporation: to establish, maintain and to close depositary accounts,
in the corporation’s name, for the deposit and withdrawal of corporation funds;
to designate those individuals authorized to withdraw funds or sign checks
in
said depositary accounts; and to execute customer agreements with respect to
such depositary accounts, including forms of corporate resolutions, certified
with respect to the approval of the board of directors as of the date such
forms
of corporate resolutions are executed. The secretary or assistant secretary
is,
authorized for and on behalf of the corporation without further action of the
board of directors to certify as to the approval of the board of directors
of
forms of resolutions regarding any of such depositary or trading accounts as
of
the date the officer of the corporation executes the customer agreement with
respect to each such account.
ARTICLE
IX.
NOTICES
Section 9.1.
General
. Written
notice to stockholders of stockholder meetings shall be given as provided in
Section 2.3
herein. Without limiting the manner by
which notice may otherwise be given effectively to stockholders under any
agreement or contract with such stockholder, and except as otherwise required
by
law, written notice to stockholders for purposes other than stockholder meetings
may be sent by U.S. mail or nationally recognized overnight courier, or by
facsimile, telegraph or telex or by electronic mail or other electronic
means. Whenever the provisions of any statute or these bylaws require
notice to be given to any director, such notice may be given by the method
stated in the previous sentence, except that such notice other than one that
is
delivered personally shall be sent to such address as such director shall have
filed in writing with the secretary, or, in the absence of such filing, to
the
last known post office address of such director.
Section 9.2.
Waivers
. Whenever
any notice whatever is required to be given under provisions of law or of the
certificate of incorporation or of these bylaws, a waiver thereof in writing
signed by the person or persons entitled to said notice or a waiver by
electronic transmission, whether before or after the time stated therein, shall
be deemed equivalent to the giving of such notice.
Section 9.3.
Attendance
as Waiver
. Attendance of a person at a meeting shall
constitute a waiver of notice of such meeting, except where a person attends
a
meeting for the express purpose of objecting at the beginning of the meeting
to
the transaction of any business because the meeting is not lawfully called
or
convened.
Section 9.4.
Omission
of Notice to Stockholders
. Any notice required to be
given to any stockholder under any statutory provision, the certificate of
incorporation or these bylaws need not be given to the stockholder
if:
(a) notice
of two consecutive annual meetings and all notices of meetings held or the
takings of action by written consent without a meeting to such stockholder
taken
during the period between those annual meetings, or
(b) all,
and at least two, payments (if sent by first class mail) of distributions or
interest on securities during a twelve-month period,
have
been
mailed to that person, addressed at his or her address as shown on the share
transfer records of the corporation, and have been returned
undeliverable. Any action or meeting taken or held without notice to
such a person shall have the same force and effect as if the notice had been
duly given. If such a person delivers to the corporation a written
notice setting forth his or her then current address, the requirement that
notice be given to that person shall be reinstated.
ADOPTED
BY THE BOARD OF DIRECTORS AS OF NOVEMBER 6, 2007
/s/
A.
Andrew R.
Louis
A.
Andrew R. Louis, Secretary
