Amended
and Restated By-Laws
ARTICLE
I
Name
The
name
of the corporation is
Freeport-McMoRan
Copper & Gold Inc.
ARTICLE
II
Offices
1.
The
location of the registered office of the corporation in the State of Delaware
is
1209 Orange Street, in the City of Wilmington, County of New Castle, and the
name of its registered agent at such address is The Corporation Trust
Company.
2.
The
corporation shall in addition to its registered office in the State of Delaware
establish and maintain an office or offices at such place or places as the
Board
of Directors may from time to time find necessary or desirable.
ARTICLE
III
Corporate
Seal
The
corporate seal of the corporation shall have inscribed thereon the name of
the
corporation and the year of its creation (1987) and the words "Corporate Seal
Delaware". Such seal may be used by causing it or a facsimile thereof to be
impressed, affixed, printed or otherwise reproduced.
ARTICLE
IV
Meeting
of Stockholders
1.
Meetings
of the stockholders shall be held at the registered office of the corporation
in
the State of Delaware, or at such other place as shall be determined, from
time
to time, by the Board of Directors.
2.
The
annual meeting of stockholders shall be held on such day at such time as may
be
determined from time to time by resolution of the Board of Directors. At each
annual meeting of the stockholders they shall elect by a majority of the votes
cast, by written ballot, and subject to the voting powers set forth in the
Certificate of Incorporation, the successors of the directors whose term expires
at such meeting, to hold office until the annual meeting of stockholders held
in
the year following their election and until their successors are respectively
elected and qualified or until their earlier resignation or removal, provided
that if the number of nominees exceeds the number of directors to be elected,
the directors shall be elected by plurality vote. In an uncontested election,
any nominee for director who has a majority of votes cast “withheld” from his or
her election shall promptly tender his or her resignation to the Board. The
Nominating and Corporate Governance Committee will consider the tendered
resignation and recommend to the Board whether to accept or reject the
resignation. The Board shall act on the Nominating and Corporate Governance
Committee’s recommendation and publicly disclose its decision within 90 days
from the date of the annual meeting of stockholders. Any director who tenders
his or her resignation shall not participate in the Nominating and Corporate
Governance Committee’s recommendation or the Board action regarding whether to
accept or reject the tendered resignation. If each member of the Nominating
and
Corporate Governance Committee fails to be elected at the same election, the
independent directors who were elected shall appoint a committee to consider
the
tendered resignations and recommend to the Board whether to accept or reject
them. Any vacancies in the Board resulting from the failed election of a
director under this section may be filled by a majority of the directors then
in
office, although less than a quorum, and each director so elected shall hold
office until his or her successor has been elected and duly qualified. Any
other
proper business may be transacted at the annual meeting.
3.
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
at
all meetings of the stockholders for the transaction of business except as
otherwise provided by statute, 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 stockholders, the stockholders entitled to vote thereat, present
in person or by proxy, shall have power to adjourn the meeting from time to
time
without notice other than announcement at the meeting (except as otherwise
provided by statute), until the requisite amount of voting stock shall be
present. 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 at the meeting as originally notified.
4.
At
all
meetings of the stockholders, each stockholder having the right to vote shall
be
entitled to vote in person, or by proxy appointed by an instrument in writing
subscribed by such stockholder and bearing a date not more than six months
prior
to said meeting, unless such instrument provides for a longer period. All
proxies shall be filed with the secretary of the meeting before being
voted.
5.
At
each
meeting of the stockholders each stockholder shall have one vote for each share
of stock having voting power, registered in his name on the books of the
corporation at the record date fixed in accordance with these By-Laws, or
otherwise determined, with respect to such meeting. Except as otherwise
expressly provided by statute, by the
Certificate
of Incorporation or by these By-Laws, all matters coming before any meeting
of
the stockholders shall be decided by the vote of a majority of the number of
shares of stock present in person or represented by proxy at such meeting and
entitled to vote thereat, a quorum being present.
6.
Notice
of
each meeting of the stockholders shall be given to each stockholder entitled
to
vote thereat not less than 10 nor more than 60 days before the date of the
meeting. Such notice shall state the place, date and hour of the meeting and,
in
the case of a special meeting, the purpose or purposes for which the meeting
is
called.
7.
Subject
to such rights to call special meetings of stockholders under specified
circumstances as may be granted to holders of any shares of Preferred Stock
of
the corporation pursuant to the provisions of Section (c) of Article FOURTH
of
the Certificate of Incorporation, special meetings of the stockholders may
be
called only by the Chairman of the Board, the Vice Chairman of the Board or
the
President of the corporation, or at the request in writing or by a vote of
a
majority of the Board of Directors, and not by any other persons. Any request
for a special meeting made by the Board of Directors shall state the purpose
or
purposes of the proposed meeting.
8.
Business
transacted at each special meeting shall be confined to the purpose or purposes
stated in the notice of such meeting.
9.
The
order
of business at each meeting of the stockholders shall be determined by the
chairman of such meeting.
10.
At
an
annual meeting of the stockholders, only business shall be conducted as shall
have been brought before the meeting (a) by or at the direction of the Board
of
Directors or (b) by any stockholder of the corporation who complies with the
notice procedures set forth in this Section 10. For business to be properly
brought before an annual meeting by a stockholder, the stockholder must have
given timely notice thereof in writing to the Secretary of the corporation.
To
be timely, a stockholder's notice must be delivered to the Secretary at the
principal executive offices of the corporation not later than the close of
business on the 120th day nor earlier than the close of business on the 210th
day prior to the first anniversary of the preceding year's annual meeting;
provided, however, that in the event that the date of the annual meeting is
more
than 30 days before or more than 90 days after such anniversary date, notice
by
the stockholder to be timely must be so delivered not earlier than the close
of
business on the 120th day prior to such annual meeting and not later than the
close of business on the later of the 90th day prior to such annual meeting
or
the 10th day following the day on which public announcement of the date of
such
meeting is first made. In no event shall the public announcement of an
adjournment of an annual meeting commence a new time period for the giving
of a
stockholder's notice as described above. A stockholder's notice to the Secretary
shall set forth as to each matter the stockholder proposes to bring before
the
annual meeting (a) a brief description of the business desired to be brought
before the annual meeting and the reasons for conducting such business at the
annual meeting, (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 which are beneficially owned by the stockholder and
(d) any material
interest
of the stockholder in such business. Notwithstanding anything in the By-Laws
to
the contrary, no business shall be conducted at an annual meeting except in
accordance with the procedures set forth in this Section 10. The chairman of
an
annual meeting shall, if the facts warrant, determine and declare to the meeting
that business was not properly brought before the meeting and in accordance
with
the provisions of the By-Laws, and if he should so determine, he shall so
declare to the meeting and any such business not properly brought before the
meeting shall not be transacted. Notwithstanding the foregoing provisions of
this Section 10, a stockholder seeking to have a proposal included in the
corporation's proxy statement shall comply with the requirements of Regulation
14A under the Securities Exchange Act of 1934, as amended (including, but not
limited to, Rule 14a-8 or its successor provision).
11.
Only
persons who are nominated in accordance with the procedures set forth in the
By-Laws shall be eligible for election as directors. Nominations of persons
for
election to the Board of Directors of the corporation may be made at a meeting
of stockholders (a) by or at the direction of the Board of Directors or (b)
by
any stockholder of the corporation entitled to vote for the election of
directors at the meeting who complies with the notice procedures set forth
in
this Section 11. Such nominations, other than those made by or at the direction
of the Board of Directors, shall be made pursuant to timely notice in writing
to
the Secretary of the corporation. To be timely, a stockholder's notice must
be
delivered to the Secretary at the principal executive offices of the corporation
not later than the close of business on the 120th day nor earlier than the
close
of business on the 210th day prior to the first anniversary of the preceding
year's annual meeting; provided, however, that in the event that the date of
the
annual meeting is more than 30 days before or more than 90 days after such
anniversary date, notice by the stockholder to be timely must be so delivered
not earlier than the close of business on the 120th day prior to such annual
meeting and not later than the close of business on the later of the 90th day
prior to such annual meeting or the 10th day following the day on which public
announcement of the date of such meeting is first made. In no event shall the
public announcement of an adjournment of an annual meeting commence a new time
period for the giving of a stockholder's notice as described above. Such
stockholder's notice shall set forth (a) as to each person whom the stockholder
proposes to nominate for election or reelection as a director all information
relating to such person that is required to be disclosed in solicitations of
proxies for election of directors, or is otherwise required, in each case
pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended
(including such person's written consent to being named in the proxy statement
as a nominee and to serving as a director if elected); and (b) as to the
stockholder giving the notice (i) the name and address, as they appear on the
corporation's books, of such stockholder and (ii) the class and number of shares
of the corporation which are beneficially owned by such stockholder. At the
request of the Board of Directors any person nominated by the Board of Directors
for election as a director shall furnish to the Secretary of the corporation
that information required to be set forth in a stockholder's notice of
nomination which pertains to the nominee. No person shall be eligible for
election as a director of the corporation unless nominated in accordance with
the procedures set forth in the By-Laws. The chairman of the meeting shall,
if
the facts warrant, determine and declare to the meeting that a nomination was
not made in accordance with the procedures prescribed by the By-Laws, and if
he
should so determine, he shall so declare to the meeting and the defective
nomination shall be disregarded.
12.
Any
action required or permitted to be taken at any annual or special meeting of
stockholders may be taken without a meeting, without prior notice and without
a
vote, if a consent in writing, setting forth the action so taken, shall be
signed by stockholders having not less than a 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. 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
V
Directors
1.
The
business and affairs of the corporation shall be managed by or under the
direction of a Board of Directors which may exercise all such powers and
authority for and on behalf of the corporation as shall be permitted by law,
the
Certificate of Incorporation or these By-Laws.
2.
The
directors may hold their meeting and have one or more offices, and, subject
to
the laws of the State of Delaware, keep the stock ledger and other books and
records of the corporation outside of said State, at such place or places as
they may from time to time determine.
3.
Any
director may resign at any time by giving written notice of his resignation
to
the Board of Directors, to the Chairman of the Board, the Vice Chairman of
the
Board or the President. Any such resignation shall take effect upon receipt
thereof by the Board, the Chairman of the Board, the Vice Chairman of the Board
or the President, as the case may be, or at such later date as may be specified
therein. Any such notice to the Board shall be addressed to it in care of the
Secretary.
ARTICLE
VI
Committees
of Directors
1.
By
resolutions adopted by a majority of the whole Board of Directors, the Board
may
designate an Executive Committee, an Audit Committee, a Corporate Personnel
Committee, a Nominating and Corporate Governance Committee and a Public Policy
Committee, and may designate one or more other committees, each such committee
to consist of one or more directors of the corporation. The Executive Committee
shall have and may exercise all the powers of the Board in the management of
the
business and affairs of the corporation (except as otherwise expressly limited
by statute), including the power and authority to declare dividends and to
authorize the issuance of stock, and may authorize the seal of the corporation
to be affixed to all papers which may require it. The Audit Committee, the
Corporate Personnel Committee, the Nominating and Corporate Governance
Committee, the Public Policy Committee and each such other committee shall
have
such of the powers and authority of the Board as may
be
provided from time to time in resolutions adopted by a majority of the whole
Board. Each committee shall report its proceedings to the Board when
required.
2.
The
requirements with respect to the manner in which the Executive Committee and
each such other committee shall hold meetings and take actions shall be set
forth in the resolutions of the Board of Directors designating the Executive
Committee or such other committee and in the charters of such committees as
adopted by the Board of Directors.
ARTICLE
VII
Compensation
of Directors
The
directors shall receive such compensation for their services as may be
authorized by resolution of the Board of Directors, which compensation may
include an annual fee and a fixed sum and expenses for attendance at regular
or
special meetings of the Board or any committee thereof. Nothing herein contained
shall be construed to preclude any director from serving the corporation in
any
other capacity and receiving compensation therefor.
ARTICLE
VIII
Meetings
of Directors; Action Without a Meeting
1.
Regular
meetings of the Board of Directors may be held without notice at such time
and
place, either within or without the State of Delaware, as may be determined
from
time to time by resolution of the Board.
2.
Special
meetings of the Board of Directors may be called by the Chairman of the Board,
by the Vice Chairman of the Board or by the President on at least 24 hours'
notice to each director, and shall be called by the President or the Secretary
on like notice on the request in writing of any director. Except as may be
otherwise specifically provided by statute, by the Certificate of Incorporation
or by these By-Laws, the purpose or purposes of any such special meeting need
not be stated in such notice.
3.
At
all
meetings of the Board of Directors the presence in person of a majority of
the
total number of directors shall be necessary and sufficient to constitute a
quorum for the transaction of business and, except as may be otherwise
specifically provided by statute, by the Certificate of Incorporation or by
these By-Laws, if a quorum shall be present the act of a majority of the
directors present at any meeting shall be the act of the Board.
4.
Any
action required or permitted to be taken at any meeting of the Board of
Directors or any committee thereof may be taken without a meeting if all the
members of the Board or such committee, as the case may be, consent thereto
in
writing and the writing or writings are filed with the minutes of proceedings
of
the Board or committee. Any director may participate in a meeting of the Board,
or of any committee designated by the Board, by means of
a
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 sentence shall constitute presence in person at such
meeting.
ARTICLE
IX
Advisory
Directors
The
Board
of Directors may, from time to time as it deems appropriate by resolution
adopted by a
majority
of the
entire Board, appoint individuals as Advisory Directors. Each Advisory Director
shall serve in such capacity at the pleasure of the Board of Directors. It
shall
be the duty of Advisory Directors to advise and provide general policy advice
to
the Board of Directors at such times and places and in such groups and
committees as may be determined from time to time by the Board of Directors.
Each Advisory Director shall be entitled to receive notice of and to attend
regular meetings of the Board of Directors or any committee of the Board for
which such Advisory Director has been appointed to serve as an advisor or
consultant, and may participate in all discussions occurring during such
meetings in an advisory capacity. Advisory Directors shall not be entitled
to
vote on any matter brought before the Board of Directors or any committee
thereof and shall not be counted for the purpose of determining whether a quorum
of the Board of Directors (or any committee thereof) is present. No Advisory
Director shall be deemed to be a Director of the corporation for any purposes
whatsoever under any applicable law or under these by-laws. The compensation
paid to Advisory Directors shall be determined from time to time by the Board
of
Directors.
ARTICLE
X
Officers
1.
The
officers of the corporation shall be chosen by the Board of Directors and shall
be a Chairman of the Board, a President, one or more Vice Presidents, a
Secretary, and a Treasurer. The Board of Directors may also choose a Vice
Chairman of the Board, one or more Executive Vice Presidents, one or more Senior
Vice Presidents, a General Counsel, one or more Assistant Vice Presidents,
a
Controller and one or more Assistant Secretaries, Assistant Treasurers or
Assistant Controllers, and such other officers 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 prescribed from time to time by the Board or
by
the Chairman of the Board. Any number of offices may be held by the same
person.
2.
Annually,
the Board of Directors shall choose a Chairman of the Board from among the
directors, and shall choose the remaining officers who need not be members
of
the Board except in the event they choose a Vice Chairman of the
Board.
3.
The
salaries of all officers of the corporation shall be fixed by the Board of
Directors, or in such manner as the Board may prescribe.
4.
The
officers of the corporation shall hold office until their successors are
respectively chosen and qualified, except that any officer may at any time
resign or be removed by the Board of Directors. If the office of any officer
becomes vacant for any reason, the vacancy may be filled by the
Board.
5.
Any
officer may resign at any time by giving written notice of his resignation
to
the Board of Directors, the Chairman of the Board, the Vice Chairman of the
Board or the President. Any such resignation shall take effect upon receipt
thereof by the Board, the Chairman of the Board, the Vice Chairman of the Board
or the President, as the case may be, or at such later date as may be specified
therein. Any such notice to the Board shall be addressed to it in care of the
Secretary.
ARTICLE
XI
Chairman
of the Board
The
Chairman of the Board shall preside at meetings of the stockholders and of
the
Board of Directors. Subject to the supervision and direction of the Board of
Directors, he shall be responsible for managing the affairs of the corporation.
He shall have general supervision and direction of all of the other officers
of
the corporation and shall have powers and duties usually and customarily
associated with the office of Chairman of the Board.
ARTICLE
XII
President
and Chief Executive Officer
The
President and Chief Executive Officer shall have the powers and duties usually
and customarily associated with the Office of President and Chief Executive
Officer. He shall have such other powers and duties as may be delegated to
him
by the Board of Directors or the Chairman of the Board. The President and Chief
Executive Officer shall, in the absence of the Chairman of the Board, preside
at
meetings of the stockholders.
ARTICLE
XIII
Vice
Chairman of the Board, Chief Operating Officer,
Chief
Financial Officer, Executive Vice Presidents,
Senior
Vice Presidents, Vice Presidents and
Assistant
Vice Presidents
The
Vice
Chairman of the Board, Chief Operating Officer, Chief Financial Officer,
Executive Vice Presidents, Senior Vice Presidents, Vice Presidents and Assistant
Vice
Presidents
shall have such powers and duties as may be delegated to them by the Board
of
Directors, the Chairman of the Board or the President and Chief Executive
Officer.
ARTICLE
XIV
General
Counsel, Secretary and Assistant Secretaries
1.
The
General Counsel shall have the powers and duties usually and customarily
associated with the position of General Counsel. He shall have such other powers
and duties as may be delegated to him by the Board of Directors or the Chairman
of the Board.
2.
The
Secretary shall attend all meetings of the Board of Directors and of the
stockholders, and shall record the minutes of all proceedings in a book to
be
kept for that purpose. He shall perform like duties for the committees of the
Board when required.
3.
The
Secretary shall give, or cause to be given, notice of meetings of the
stockholders and of the Board of Directors and of committees of the Board.
He
shall keep in safe custody the seal of the corporation, and when authorized
by
the Chairman of the Board, the Vice Chairman of the Board, the President, an
Executive Vice President, a Senior Vice President, a Vice President or the
General Counsel, shall affix the same to any instrument requiring it, and when
so affixed it shall be attested by his signature or by the signature of an
Assistant Secretary. He shall have such other powers and duties as may be
delegated to him by the Board of Directors or the Chairman of the
Board.
4.
The
Assistant Secretaries shall, in case of the absence or disability of the
Secretary, perform the duties and exercise the powers of the Secretary, and
shall have such other powers and duties as may be delegated to them by the
Board
of Directors or the Chairman of the Board.
ARTICLE
XV
Treasurer
and Assistant Treasurers
1.
The
Treasurer shall have the custody of the corporate funds and securities, and
shall deposit or cause to be deposited under his direction all moneys and other
valuable effects in the name and to the credit of the corporation in such
depositories as may be designated by the Board of Directors or pursuant to
authority granted by it. He shall render to the Chairman of the Board and the
Board of Directors, whenever they may require it, an account of all his
transactions as Treasurer and of the financial condition of the corporation.
He
shall have such other powers and duties as may be delegated to him by the Board
of Directors or the Chairman of the Board.
2.
The
Assistant Treasurers shall, in case of the absence or disability of the
Treasurer, perform the duties and exercise the powers of the Treasurer, and
shall have such other
powers
and duties as may be delegated to them by the Board of Directors or the Chairman
of the Board.
ARTICLE
XVI
Controller
and Assistant Controllers
1.
The
Controller shall maintain adequate records of all assets, liabilities and
transactions of the corporation, and shall see that adequate audits thereof
are
currently and regularly made. He shall disburse the funds of the corporation
in
payment of the just obligations of the corporation, or as may be ordered by
the
Board of Directors, taking proper vouchers for such disbursements. He shall
have
such other powers and duties as may be delegated to him by the Board of
Directors or the Chairman of the Board.
2.
The
Assistant Controllers shall, in case of the absence of the Controller, perform
the duties and exercise the powers of the Controller, and shall have such other
powers and duties as may be delegated to them by the Board of Directors or
the
Chairman of the Board.
ARTICLE
XVII
Agents
and Representatives
The
Chairman of the Board, the Vice Chairman of the Board, the President, any
Executive Vice President, any Senior Vice President or any Vice President,
the
General Counsel, together with the Secretary or any Assistant Secretary, are
authorized and empowered in the name of and as the act and deed of the
corporation, to name and appoint general and special agents, representatives,
and attorneys to represent the corporation in the United States or in any
foreign country, and to prescribe, limit and define the powers and duties of
such agents, representatives and attorneys, and to grant, substitute, revoke,
or
cancel, in whole or in part, any power of attorney or other authority conferred
on any such agent, representative, or attorney. All powers of attorney or other
instruments which may be executed pursuant to this provision shall be signed
by
the Chairman of the Board, the Vice Chairman of the Board, the President, any
Executive Vice President, any Senior Vice President, or any Vice President,
the
General Counsel, and by the Secretary or an Assistant Secretary and the seal
of
the corporation shall be affixed thereto. No further authorization by the Board
of Directors shall be necessary in connection with the foregoing, it being
intended that this By-Law shall constitute full and complete authority by which
the officers above mentioned may act for the purposes aforesaid.
ARTICLE
XVIII
Certificates
of Stock
The
shares of the corporation shall be uncertificated or shall be represented by
certificates signed in the name of the corporation. The certificates for shares
of stock of the corporation shall be numbered and shall be entered on the books
of the corporation as they are issued. The certificated shares shall exhibit
the
holder’s name and number of shares and shall be signed by the Chairman of the
Board, the Vice Chairman of the Board, the President, an Executive Vice
President, a Senior Vice President or a Vice President and by the Treasurer,
an
Assistant Treasurer, the Secretary or an Assistant Secretary. The signature
of
any such officers may be facsimile if such certificate is countersigned by
a
transfer agent other than the corporation or its employee or by a registrar
other than the corporation or its employee. In case any officer who has signed
or whose facsimile signature has been placed on any such certificate shall
have
ceased to be such officer before such certificate is issued, then, unless the
Board of Directors shall otherwise determine and cause notification thereof
to
be given to such transfer agent and registrar, such certificate may be issued
by
the corporation (and by its transfer agent) and registered by its registrar
with
the same effect as if he were such officer at the date of issue.
ARTICLE
XIX
Transfers
of Stock
1.
Upon
surrender to the corporation or the transfer agent of a certificate for shares
duly endorsed or accompanied by proper evidence of succession, assignment or
authority to transfer, it shall be the duty of the corporation to issue a new
certificate to the person entitled thereto, cancel the old certificate and
record the transaction upon its books. Upon receipt of proper transfer
instructions from the registered holder of uncertificated shares such
uncertificated shares shall be cancelled and issuance of new equivalent
uncertificated shares or certificated shares shall be made to the person
entitled thereto and the transaction shall be recorded upon the books of the
corporation.
2.
Within
a
reasonable time after the issuance or transfer of uncertificated shares, the
corporation shall send, or cause to be sent, to the registered owner thereof
a
written notice containing the information required to be set forth or stated
on
certificates pursuant to Sections 151, 156, 202(a) or 218(a) of the Delaware
General Corporation Law or a statement that the corporation will furnish without
charge to each stockholder who so requests the powers, designations, preferences
and relative, participating, optional or other special rights of each class
of
stock or series thereof and the qualifications, limitations or restrictions
of
such preferences and rights.
ARTICLE
XX
Fixing
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 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 a record date, which record date shall not precede the date upon which
the resolution fixing the record date is adopted by the Board of Directors
and
which record date: (1) in the case of determination of stockholders entitled
to
vote on any meeting of stockholders or adjournment thereof, shall, unless
otherwise required by law, not be more than 60 nor less than 10 days before
the
date of such meeting; (2) in the case of determination of stockholders entitled
to express consent to corporate action in writing without a meeting, shall
not
be more than 10 days from the date upon which the resolution fixing the record
date is adopted by the Board of Directors; and (3) in the case of any other
action, shall not be more than 60 days prior to such other action. If no record
date is fixed: (1) 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 preceding the day on which notice is given, or, if notice
is
waived, at the close of business on the day preceding the day on which the
meeting is held; (2) the record date for determining stockholders entitled
to
express consent to corporate action in writing without a meeting when no prior
action of the Board of Directors is required by law, shall be the first date
on
which a signed written consent setting forth the action taken or proposed to
be
taken is delivered to the corporation in accordance with applicable law, or,
if
prior action by the Board of Directors is required by law, shall be at the
close
of business on the day on which the Board of Directors adopts the resolution
taking such prior action; and (3) 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.
ARTICLE
XXI
Registered
Stockholders
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 the State of
Delaware.
ARTICLE
XXII
Checks
All
checks, drafts and other orders for the payment of money, and all promissory
notes and other evidences of the corporation shall be signed by such officer
or
officers or such other person or persons as may be designated by the Board of
Directors or pursuant to authority granted by it.
ARTICLE
XXIII
Fiscal
Year
The
fiscal year shall begin the first day of January in each year.
ARTICLE
XXIV
Notices
and Waivers
1.
Whenever
by statute or by the Certificate of Incorporation or by these By-Laws it is
provided that notice shall be given to any director or stockholder, such
provision shall not be construed to require personal notice, but such notice
may
also be given in writing, by mail, by depositing the same in the United States
mail, postage prepaid, directed to such stockholder or director at his address
as it appears on the records of the corporation, or in default of such address,
to such director or stockholder at the General Post Office in the City of
Wilmington, Delaware, and such notice shall be deemed to be given at the time
when the same shall be thus deposited. Notice of special meetings of the Board
of Directors may also be given to any director by (i) telephone, (ii)
telecopier, (iii) electronic mail, (iv) telex or (v) telegraph or cable, and
in
the latter event the notice shall be deemed to be given at the time such notice,
addressed to such director at the address hereinbefore provided, shall be
transmitted or delivered to and accepted by an authorized telegraph or cable
office.
2.
Whenever
by statute or by the Certificate of Incorporation or by these By-Laws a notice
is required to be given, a written waiver thereof, signed by the person entitled
to notice, whether before or after the time stated therein, shall be deemed
equivalent to notice. Attendance of any stockholder or director at any meeting
thereof shall constitute a waiver of notice of such meeting by such stockholder
or director, as the case may be, except as otherwise provided by
statute.
ARTICLE
XXV
Alteration
of By-Laws
These
By-Laws may be altered, amended, changed or repealed by vote of the stockholders
or at any meeting of the Board of Directors by the vote of a majority of the
directors present or as otherwise provided by statute.
ARTICLE
XXVI
Indemnification
of Corporate Personnel
The
corporation shall indemnify any person who is or was a director, advisory
director, officer, employee or agent of the corporation, or is or was serving
at
the request of the corporation as a director, advisory director, officer,
employee or agent of another corporation, partnership, joint venture, trust
or
other enterprise as provided in the Certificate of Incorporation. Expenses
incurred by such a director, advisory director, officer, employee or agent
in
defending a civil or criminal action, suit or proceeding shall be paid by the
corporation as provided in the Certificate of Incorporation. The corporation
shall have power to purchase and maintain insurance on behalf of any such
persons 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 the Certificate of Incorporation. The
indemnification provisions of this Article XXVI and the Certificate of
Incorporation shall not be deemed exclusive of any other rights to which those
seeking indemnification may be entitled under any applicable law, by-law,
agreement, vote of stockholders or disinterested directors or
otherwise.
The
provisions of this Article XXVI and Article EIGHTH of the Certificate of
Incorporation shall be deemed to be a contract between the corporation and
each
person who serves as such director, advisory director, officer, employee or
agent of the corporation in any such capacity at any time while this Article
XXVI and Article EIGHTH of the Certificate of Incorporation are in effect.
No
repeal or modification of the provisions of this Article XXVI and Article EIGHTH
of the Certificate of Incorporation nor, to the fullest extent permitted by
law,
any modification of law shall adversely affect any right or protection of a
director, advisory director, officer, employee or agent of the corporation
then
existing at the time of such repeal or modification.
