BYLAWS
OF
MORGAN
STANLEY
(hereinafter
called the "Corporation")
ARTICLE
1
OFFICES
AND RECORDS
SECTION
1.01.
Delaware
Office
. The principal office of the Corporation in the State of
Delaware shall be located in the City of Wilmington, County of New
Castle.
SECTION
1.02.
Other
Offices
. The Corporation may have such other offices, either
within or without the State of Delaware, as the Board of Directors may designate
or as the business of the Corporation may from time to time
require.
ARTICLE
2
STOCKHOLDERS
SECTION
2.01.
Annual
Meeting
. The annual meeting of the stockholders of the
Corporation shall be held at such date, place and time as may be fixed by
resolution of the Board of Directors.
SECTION
2.02.
Special
Meeting
. Subject to the rights of the holders of any series of
preferred stock of the Corporation (the "Preferred Stock") or any other series
or class of stock as set forth in the Amended and Restated Certificate of
Incorporation, special meetings of the stockholders may be called at any time
only by the Secretary at the direction of the Board of Directors pursuant to
a
resolution adopted by the Board of Directors.
SECTION
2.03.
Place of
Meeting
. The Board of Directors may designate the place of
meeting for any meeting of the stockholders. If no designation is
made by the Board of Directors, the place of meeting shall be the principal
office of the Corporation, which will be 1585 Broadway, New York, New
York.
SECTION
2.04.
Notice of
Meeting
. A notice of meeting, stating the place, day and hour of
the meeting and, in the case of special meetings, the purpose or purposes for
which such special meeting is called, shall be prepared and delivered by the
Corporation not less than ten days nor more than sixty days before the date
of
the meeting, either personally, or by mail, or, to the extent and in the manner
permitted by applicable law, electronically, to each stockholder of record
entitled to vote at such meeting. Such further notice shall be given
as may be required by
law. Only
such business shall be conducted at a special meeting of stockholders as shall
have been brought before the meeting pursuant to the Corporation's notice of
meeting. Any previously scheduled meeting of the stockholders may be
postponed, and (unless the Amended and Restated Certificate of Incorporation
otherwise provides) any special meeting of the stockholders may be canceled,
by
resolution of the Board of Directors upon public notice given prior to the
time
previously scheduled for such meeting of stockholders.
SECTION
2.05.
Quorum and
Adjournment
. Except as otherwise provided by law or by the
Amended and Restated Certificate of Incorporation, the holders of a majority
of
the voting power of the outstanding shares of the Corporation entitled to vote
generally in the election of directors (the "Voting Stock"), represented in
person or by proxy, shall constitute a quorum at a meeting of stockholders,
except that when specified business is to be voted on by a class or series
voting as a class, the holders of a majority of the voting power of the shares
of such class or series shall constitute a quorum for the transaction of such
business. The Chairman of the Board and Chief Executive Officer or
the holders of a majority of the voting power of the shares of Voting Stock
so
represented may adjourn the meeting from time to time, whether or not there
is
such a quorum (or, in the case of specified business to be voted on by a class
or series, the Chairman of the Board and Chief Executive Officer or the holders
of a majority of the voting power of the shares of such class or series so
represented may adjourn the meeting with respect to such specified
business). No notice of the time and place of adjourned meetings need
be given except as required by law. The stockholders present at a
duly organized meeting may continue to transact business until adjournment,
notwithstanding the withdrawal of enough stockholders to leave less than a
quorum.
SECTION
2.06.
Proxies
. At all meetings of stockholders, a
stockholder may vote by proxy as may be permitted by law; provided, that no
proxy shall be voted after three years from its date, unless the proxy provides
for a longer period. Any proxy to be used at a meeting of
stockholders must be filed with the Secretary of the Corporation or his
representative at or before the time of the meeting.
SECTION
2.07.
Notice of Stockholder Business and
Nominations
.
(a)
Annual Meetings of
Stockholders.
(i)
Nominations of persons for election
to the Board of Directors of the Corporation and the proposal of business to
be
considered by the stockholders may be made at an annual meeting of stockholders
only (A) pursuant to the Corporation's notice of meeting delivered pursuant
to
Section 2.04 of these Amended and Restated Bylaws (or any supplement thereto),
(B) by or at the direction of the Board of Directors or (C) by any stockholder
of the Corporation who is entitled to vote at the meeting, who complied with
the
notice procedures set forth in clauses (ii) and (iii) of this Section 2.07(a)
and who was a stockholder of record on the date such notice is delivered to
the
Secretary of the Corporation.
(ii)
For nominations or other business
to be properly brought before an annual meeting by a stockholder pursuant to
clause (C) of paragraph (a) (i) of this Bylaw, the stockholder must
have
given
timely notice thereof in writing to the Secretary of the Corporation and, in
the
case of business other than nominations, such other business must otherwise
be a
proper matter for stockholder action. To be timely, a stockholder's
notice shall be delivered to the Secretary at the principal executive offices
of
the Corporation not later than the close of business on the ninetieth day,
nor
earlier than the close of business on the one hundred twentieth day prior to
the
first anniversary of the preceding year's annual meeting; provided however,
that
if the date of the annual meeting is advanced by more than thirty days, or
delayed by more than ninety days, from such anniversary date, notice by the
stockholder to be timely must be so delivered not earlier than the close of
business on the one hundred twentieth day prior to such annual meeting and
not
later than the close of business on the later of the ninetieth day prior to
such
annual meeting or the tenth day following the day on which public announcement
of the date of such meeting is first made by the Corporation. In no
event shall the public announcement of an adjournment or postponement of an
annual meeting commence a new time period (or extend any time period) for the
giving of a stockholder's notice as described in this Section 2.07(a). Such
stockholder's notice shall set forth (A) as to each person whom the stockholder
proposes to nominate for election as a director, all information relating to
such person that is required to be disclosed in solicitations of proxies for
election of directors in an election contest, or is otherwise required, in
each
case pursuant to Regulation 14A under the Securities Exchange Act of 1934,
as
amended (the "Exchange Act"), including such person's written consent to being
named in the proxy statement as a nominee and to serving as a director if
elected; (B) as to any other business that the stockholder proposes to bring
before the meeting, a brief description of the business desired to be brought
before the meeting, the text of the proposal or business (including the text
of
any resolutions proposed for consideration and if such business includes a
proposal to amend the Amended and Restated Bylaws of the Corporation, the text
of the proposed amendment), the reasons for conducting such business at the
meeting, and any material interest in such business of such stockholder and
the
beneficial owner, if any, on whose behalf the proposal is made; and (C) as
to
the stockholder giving the notice and the beneficial owner, if any, on whose
behalf the nomination or proposal is made (1) the name and address of such
stockholder, as they appear on the Corporation's books, and of such beneficial
owner, (2) the class and number of shares of the Corporation that are owned
beneficially and of record by such stockholder and such beneficial owner and
(3)
a representation as to whether the stockholder or the beneficial owner, if
any,
intends or is part of a group that intends to solicit proxies from stockholders
in support of such proposal or nomination. The foregoing notice
requirements of this Bylaw shall be deemed satisfied by a stockholder if the
stockholder has notified the Corporation of the stockholder’s intention to
present a proposal or nomination at an annual meeting in compliance with
applicable rules and regulations promulgated under the Exchange Act and such
stockholder’s proposal or nomination has been included in a proxy statement that
has been prepared by the Corporation to solicit proxies for such annual
meeting. The Corporation may require any proposed nominee to furnish
such other information as it may reasonably require to determine the eligibility
of such proposed nominee to serve as a director of the Corporation and the
impact that such service would have on the ability of the Corporation to satisfy
the requirements of laws, rules, regulations and listing standards applicable
to
the Corporation or its directors.
(iii)
Notwithstanding anything in the
second sentence of clause (ii) of this Section 2.07(a) to the contrary, if
the
number of directors to be elected to the Board of Directors of the
Corporation
is increased and the public announcement by the Corporation naming the nominees
for the additional directorships is not made by the close of business on the
one
hundredth day prior to the first anniversary of the preceding year's annual
meeting, a stockholder's notice required by this Bylaw shall also be considered
timely, but only with respect to nominees for any new directorships created
by
such increase, if it shall be delivered to the Secretary at the principal
executive offices of the Corporation not later than the close of business on
the
tenth day following the day on which such public announcement is first made
by
the Corporation.
(b)
Special Meetings of
Stockholders.
Only
such business shall be conducted
at a special meeting of stockholders as shall have been brought before the
meeting pursuant to the Corporation's notice of meeting pursuant to Section
2.04
of these Amended and Restated Bylaws. Nominations of persons for
election to the Board of Directors may be made at a special meeting of
stockholders at which directors are to be elected pursuant to the Corporation's
notice of meeting (i) by or at the direction of the Board of Directors or (ii)
by any stockholder of the Corporation who is entitled to vote at the meeting,
who complies with the notice procedures set forth in this Bylaw and who is
a
stockholder of record at the time such notice is delivered to the Secretary
of
the Corporation. If the Corporation calls a special meeting of
stockholders for the purpose of electing one or more directors to the Board
of
Directors, any stockholder entitled to vote in such election may nominate such
number of persons for election to such position(s) as are specified in the
Corporation's Notice of Meeting, if the stockholder's notice as required by
clause (ii) of Section 2.07(a) of these Amended and Restated Bylaws shall be
delivered to the Secretary at the principal executive offices of the Corporation
not earlier than the close of business on the one hundred twentieth day prior
to
such special meeting and not later than the close of business on the later
of
the ninetieth day prior to such special meeting or the tenth day following
the
day on which public announcement of the date of the special meeting and of
the
nominees proposed by the Board of Directors to be elected at such meeting is
first made by the Corporation. In no event shall the public
announcement of an adjournment or postponement of a special meeting commence
a
new time period (or extend any time period) for the giving of a stockholder's
notice as described above.
(c)
General.
(i)
Only persons who are nominated in
accordance with the procedures set forth in this Bylaw shall be eligible to
be
elected as directors at a meeting of stockholders and only such business shall
be conducted at a meeting of stockholders as shall have been brought before
the
meeting in accordance with the procedures set forth in this
Bylaw. Except as otherwise provided by law, the Amended and Restated
Certificate of Incorporation or these Amended and Restated Bylaws, the Chairman
of the Board and Chief Executive Officer shall have the power and duty to
determine whether a nomination or any business proposed to be brought before
the
meeting was made or proposed in accordance with the procedures set forth in
this
Bylaw and, if any proposed nomination or business is not in compliance with
this
Bylaw, to declare that such defective proposal or nomination shall be
disregarded.
(ii)
For
purposes of this Bylaw, "public announcement" shall mean disclosure in a press
release reported by the Dow Jones News Service, Associated Press or comparable
national news service or in a document publicly filed by the Corporation with
the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d)
of
the Exchange Act.
(iii)
Notwithstanding the foregoing
provisions of this Bylaw, a stockholder shall also comply with all applicable
requirements of the Exchange Act and the rules and regulations thereunder with
respect to the matters set forth in this Bylaw. Nothing in this Bylaw
shall be deemed to affect any rights (a) of stockholders to request inclusion
of
proposals in the Corporation's proxy statement pursuant to applicable rules
and
regulations under the Exchange Act or (b) of the holders of any series of
Preferred Stock, or any other series or class of stock as set forth in the
Amended and Restated Certificate of Incorporation, to elect directors pursuant
to any applicable provisions of the Amended and Restated Certificate of
Incorporation.
SECTION
2.08.
Procedure
For Election of Directors; Voting.
Except as otherwise provided
by law, the Amended and Restated Certificate of Incorporation or these Amended
and Restated Bylaws, all matters other than the election of directors submitted
to the stockholders at any meeting shall be decided by the affirmative vote
of a
majority of the voting power of the shares present in person or represented
by
proxy at the meeting and entitled to vote thereon, and where a separate vote
by
class is required, a majority of the voting power of the shares of that class
present in person or represented by proxy at the meeting and entitled to vote
thereon.
The
vote on any matter, including the
election of directors, shall be by written ballot. Each ballot shall
be signed by the stockholder voting, or by such stockholder's proxy, and shall
state the number of shares voted.
SECTION
2.09.
Inspector
of Elections; Opening and Closing of Polls; Conduct of
Meetings.
(a) The
Board of Directors by resolution shall appoint one or more inspectors, which
inspector or inspectors may not be directors, officers or employees of the
Corporation, to act at the meeting and make a written report
thereof. One or more persons may be designated as alternate
inspectors to replace any inspector who fails to act. If no inspector
or alternate has been appointed to act, or if all inspectors or alternates
who
have been appointed are unable to act, at a meeting of stockholders, the
Chairman of the Board and Chief Executive Officer shall appoint one or more
inspectors to act at the meeting. Each inspector, before discharging
his or her duties, shall take and sign an oath faithfully to execute the duties
of inspector with strict impartiality and according to the best of his or her
ability. The inspectors shall have the duties prescribed by the
General Corporation Law of the State of Delaware.
(b) The
Chairman of the Board and Chief Executive Officer shall fix and announce at
the
meeting the date and time of the opening and the closing of the polls for each
matter upon which the stockholders will vote at the meeting.
(c) The
Board of Directors may adopt by resolution such rules and regulations for the
conduct of the meeting of stockholders as it shall deem
appropriate. Except to the extent inconsistent with such rules and
regulations as adopted by the Board of Directors, the person presiding over
any
meeting of stockholders shall have the right and authority to convene and to
adjourn the meeting, to prescribe such rules, regulations and procedures and
to
do all such acts as, in the judgment of such presiding person, are appropriate
for the proper conduct of the meeting. Such rules, regulations or
procedures, whether adopted by the Board of Directors or prescribed by the
presiding person of the meeting, may include, without limitation, the following:
(i) the establishment of an agenda or order of business for the meeting; (ii)
rules and procedures for maintaining order at the meeting and the safety of
those present; (iii) limitations on attendance at or participation in the
meeting to stockholders of record of the Corporation, their duly authorized
and
constituted proxies or such other persons as the presiding person of the meeting
shall determine; (iv) restrictions on entry to the meeting after the time fixed
for the commencement thereof; and (v) limitations on the time allotted to
questions or comments by participants. The presiding person at any
meeting of stockholders, in addition to making any other determinations that may
be appropriate to the conduct of the meeting, shall, if the facts warrant,
determine and declare to the meeting that a matter or business was not properly
brought before the meeting and if such presiding person should so determine,
such presiding person shall so declare to the meeting and any such matter or
business not properly brought before the meeting shall not be transacted or
considered. Unless and to the extent determined by the Board of
Directors or the person presiding over the meeting, meetings of stockholders
shall not be required to be held in accordance with the rules of parliamentary
procedure.
SECTION
2.10.
Confidential Stockholder Voting.
All
proxies, ballots and votes, in each case to the extent they disclose the
specific vote of an identified stockholder, shall be tabulated and certified
by
an independent tabulator, inspector of elections and/or other independent
parties and shall not be disclosed to any director, officer or employee of
the
Corporation;
provided, however,
that, notwithstanding the foregoing,
any and all proxies, ballots, and voting tabulations may be disclosed: (a)
as
necessary to meet legal requirements or to assist in the pursuit or defense
of
legal action; (b) if the Corporation concludes in good faith that a bona fide
dispute exists as to the authenticity of one or more proxies, ballots or votes,
or as to the accuracy of any tabulation of such proxies, ballots or votes;
(c)
in the event of a proxy, consent or other solicitation in opposition to the
voting recommendation of the Board of Directors; and (d) if the stockholder
requests, or consents to disclosure of the stockholder’s vote or writes comments
on the stockholder’s proxy card or ballot.
ARTICLE
3
BOARD
OF DIRECTORS
SECTION
3.01.
General
Powers
. The business and affairs of the Corporation shall be
managed by or under the direction of its Board of Directors. In
addition to the powers and authorities by these Amended and Restated Bylaws
expressly conferred upon them, the Board of Directors may exercise all such
powers of the Corporation and do all such lawful acts and things as are not
by
law or by the Amended and Restated Certificate of Incorporation or by these
Amended and Restated Bylaws required to be exercised or done by the
stockholders.
SECTION
3.02.
Number, Tenure and Qualifications
.
(a) Subject to the rights of the holders of any series of Preferred
Stock, or any other series or class of stock as set forth in the Amended and
Restated Certificate of Incorporation, to elect directors (“Preferred Stock
Directors”) under specified circumstances, the number of directors shall be
fixed from time to time exclusively pursuant to a resolution adopted by the
Board of Directors, but shall consist of not less than three nor more than
fifteen directors (exclusive of Preferred Stock Directors). However,
no decrease in the number of directors constituting the Board of Directors
shall
shorten the term of any incumbent director.
(b) Except
as otherwise provided in this Section 3.02, each director shall be elected
by
the vote of the majority of the votes cast with respect to that director's
election at any meeting for the election of directors at which a quorum is
present, provided that if, as of the tenth day preceding the date the
Corporation first mails its notice of meeting for such meeting to the
stockholders of the Corporation, the number of nominees exceeds the number
of
directors to be elected (a "Contested Election"), the directors shall be elected
by the vote of a plurality of the votes cast. For purposes of this
Section 3.02, a majority of votes cast shall mean that the number of votes
cast
"for" a director's election exceeds the number of votes cast "against" that
director's election (with "abstentions" and "broker nonvotes" not counted as
a
vote cast either "for" or "against" that director's election).
(c) In
order for any incumbent director to become a nominee of the Board of Directors
for further service on the Board of Directors, such person must submit an
irrevocable resignation, provided that such resignation shall be effective
if
(i) that person shall not receive a majority of the votes cast in an election
that is not a Contested Election, and (ii) the Board of Directors shall accept
that resignation in accordance with the policies and procedures adopted by
the
Board of Directors for such purpose. In the event an incumbent
director fails to receive a majority of the votes cast in an election that
is
not a Contested Election, the nominating and governance committee of the Board
of Directors, or such other committee designated by the Board of Directors
pursuant to Section 3.09 of these Amended and Restated Bylaws, shall make a
recommendation to the Board of Directors as to whether to accept or reject
the
resignation of such incumbent director, or whether other action should be
taken. The Board of Directors shall act on the resignation, taking
into account the committee's recommendation, and publicly disclose (by a press
release and filing an appropriate disclosure with the Securities and Exchange
Commission) its decision regarding the resignation and, if such resignation
is
rejected, the rationale behind the decision within 90 days following
certification of the election results.
(d) If
the Board of Directors accepts a director's resignation pursuant to this Section
3.02, or if a nominee for director is not elected and the nominee is not an
incumbent director, then the Board of Directors may fill the resulting vacancy
pursuant to ARTICLE VII of the Amended and Restated Certificate of Incorporation
or may decrease the size of the Board of Directors pursuant to the provisions
of
this Section 3.02.
SECTION
3.03.
Regular Meetings
. The Board of Directors
may, by resolution, provide the time and place for the holding of regular
meetings without other notice than such resolution. Unless otherwise
determined by the Board of Directors, the Secretary or an Assistant Secretary
of
the
Corporation shall act as secretary at all regular meetings of the Board of
Directors and in the absence of the Secretary or any Assistant Secretary, a
temporary secretary shall be appointed by the chairman of the
meeting.
SECTION
3.04.
Special
Meetings
. Special meetings of the Board of Directors shall be
called at the request of the Chairman of the Board and Chief Executive Officer,
or a majority of the Board of Directors. The person or persons
authorized to call special meetings of the Board of Directors may fix the place
and time of the meetings. Unless otherwise determined by the Board of
Directors, the Secretary or an Assistant Secretary of the Corporation shall
act
as secretary at all special meetings of the Board of Directors and in the
absence of the Secretary and any Assistant Secretary, a temporary secretary
shall be appointed by the chairman of the meeting.
SECTION
3.05.
Notice
. Notice of any special meeting shall
be mailed to each director at his business or residence not later than three
days before the day on which such meeting is to be held or shall be sent to
either of such places by telegraph or facsimile or other electronic
transmission, or be communicated to each director personally or by telephone
(including without limitation to a representative of the director or to the
director’s electronic voice message system), not later than the day before such
day of meeting. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the Board of Directors need be
specified in the notice of such meeting, except for amendments to these Amended
and Restated Bylaws as provided pursuant to Section 8.01 hereof. A
meeting may be held at any time without notice if all the directors are present
(except as otherwise provided by law) or if those not present waive notice
of
the meeting in accordance with Section 6.04 hereof, either before or after
such
meeting.
SECTION
3.06.
Action
Without Meeting
. Any action required or permitted to be taken at
any meeting of the Board of Directors or of any committee thereof may be taken
without a meeting if all members of the Board or committee, as the case may
be,
consent thereto in writing or by electronic transmission and the writing or
writings or electronic transmission or transmissions are filed with the minutes
of proceedings of the Board or committee.
SECTION
3.07.
Conference
Telephone Meetings
. Members of the Board of Directors, or any
committee thereof, may participate in a meeting of the Board of Directors or
such committee by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and such participation in a meeting shall constitute presence in
person at such meeting.
SECTION
3.08.
Quorum.
At all meetings of the Board of
Directors, a majority of the total number of directors specified in the
resolution pursuant to Section 3.02 of these Amended and Restated Bylaws which
the Corporation would have if there were no vacancies (such total number of
Directors, the “entire Board of Directors”) shall constitute a quorum for the
transaction of business. At all meetings of the committees of the
Board of Directors, the presence of 50% or more of the total number of members
(assuming no vacancies) shall constitute a quorum. The act of the
directors or committee members present at any meeting at which there is a quorum
shall be the act of the Board of Directors or such committee, as the case may
be, except as otherwise provided in the Delaware General Corporation Law, the
Amended
and
Restated Certificate of Incorporation or these Amended and Restated
Bylaws. If a quorum shall not be present at any meeting of the Board
of Directors or any committee, a majority of the directors or members, as the
case may be, present thereat may adjourn the meeting from time to time without
further notice other than announcement at the meeting.
SECTION
3.09.
Committees
. (a) The Corporation
shall have three standing committees: the nominating and governance
committee, the audit committee and the compensation, management development
and
succession committee. Each such standing committee shall consist of
such number of directors of the Corporation and shall have such powers and
authority as shall be determined by resolution of the Board of
Directors.
(b) In
addition, the Board
of Directors may designate one or more additional committees, with each such
committee consisting of such number of directors of the Corporation and having
such powers and authority as shall be determined by resolution of the Board
of
Directors.
(c) All
acts done by any
committee within the scope of its powers and authority pursuant to these Amended
and Restated Bylaws and the resolutions adopted by the Board of Directors in
accordance with the terms hereof shall be deemed to be, and may be certified
as
being, done or conferred under authority of the Board of
Directors. The Secretary or any Assistant Secretary is empowered to
certify that any resolution duly adopted by any such committee is binding upon
the Corporation and to execute and deliver such certifications from time to
time
as may be necessary or proper to the conduct of the business of the
Corporation.
(d) Regular
meetings of
committees shall be held at such times as may be determined by resolution of
the
Board of Directors or the committee in question and no notice shall be required
for any regular meeting other than such resolution. A special meeting
of any committee shall be called by resolution of the Board of Directors, or
by
the Secretary or an Assistant Secretary upon the request of the chairman or
a
majority of the members of such committee. Notice of special meetings
shall be given to each member of the committee in the same manner as that
provided for in Section 3.05 of these Amended and Restated Bylaws.
SECTION
3.10.
Committee
Members
. (a) Each member of any committee of the
Board of Directors shall hold office until such member's successor is elected
and has qualified, unless such member sooner dies, resigns or is
removed.
(b) The
Board of Directors
may designate one or more directors as alternate members of any committee to
fill any vacancy on a committee and to fill a vacant chairmanship of a
committee, occurring as a result of a member or chairman leaving the committee,
whether through death, resignation, removal or otherwise.
SECTION
3.11.
Committee
Secretary
. Each committee may elect a secretary for such
committee. Unless otherwise determined by the committee, the
Secretary or an Assistant Secretary of the Corporation shall act as secretary
at
all regular meetings and special meetings of the committee, and in the absence
of the Secretary or any Assistant Secretary a temporary secretary shall be
appointed by the chairman of the meeting.
SECTION
3.12.
Compensation
. The directors may be paid
their expenses, if any, of attendance at each meeting of the Board of Directors
and may be paid compensation as director, lead director or chairman of any
committee and for attendance at each meeting of the Board of
Directors. Members of special or standing committees may be allowed
like compensation and payment of expenses for attending committee
meetings.
ARTICLE
4
OFFICERS
SECTION
4.01.
General
. The officers of the Corporation
shall be elected by the Board of Directors and shall consist of: a Chairman
of
the Board and Chief Executive Officer; a President or Co-Presidents; a Chief
Financial Officer; a Chief Risk Officer; a Chief Legal Officer; one or more
Executive Vice Presidents; a Secretary; one or more Assistant Secretaries;
a
Treasurer; one or more Assistant Treasurers; a Controller; and such other
officers as in the judgment of the Board of Directors may be necessary or
desirable, including one or more Senior Vice Presidents and one or more Vice
Presidents. All officers chosen by the Board of Directors shall have
such powers and duties as generally pertain to their respective offices, subject
to the specific provisions of this Article 4. Such officers shall also have
powers and duties as from time to time may be conferred by the Board of
Directors or any committee thereof. Any number of offices may be held
by the same person, unless otherwise prohibited by law, the Amended and Restated
Certificate of Incorporation or these Amended and Restated
Bylaws. The officers of the Corporation need not be stockholders or
directors of the Corporation, except that the Chairman of the Board and Chief
Executive Officer shall be a member of the Board of Directors.
SECTION
4.02.
Election
and Term of Office
. The elected officers of the Corporation
shall be elected annually by the Board of Directors at the regular meeting
of
the Board of Directors held after each annual meeting of the
stockholders. If the election of officers shall not be held at such
meeting, such election shall be held as soon thereafter as
convenient. Each officer shall hold office until his successor shall
have been duly elected and shall have qualified or until his death or until
he
shall resign or be removed.
SECTION
4.03.
Chairman of the Board and Chief Executive Officer.
The
Chairman of the Board and Chief Executive Officer shall be a member of the
Board
of Directors and shall be an officer of the Corporation. The Chairman
of the Board and Chief Executive Officer shall be the Chief Executive Officer
of
the Corporation and shall supervise, coordinate and manage the Corporation’s
business and activities and supervise, coordinate and manage its operating
expenses and capital allocation, shall have general authority to exercise all
the powers necessary for the Chief Executive Officer of the Corporation and
shall perform such other duties and have such other powers as may be prescribed
by the Board of Directors or these Amended and Restated Bylaws, all in
accordance with basic policies as established by and subject to the oversight
of
the Board of Directors. The Chairman of the Board and Chief Executive
Officer, if present, shall preside at all meetings of the Board of Directors
and
at all meetings of the stockholders of the Corporation. In the
absence or disability of the Chairman of the Board and
Chief
Executive Officer, the duties of the Chairman of the Board and Chief Executive
Officer shall be performed and the authority of the Chairman of the Board and
Chief Executive Officer may be exercised by a director designated for this
purpose by the Board of Directors.
SECTION
4.04.
President(s).
The President shall have
general authority to exercise all the powers necessary for the President of
the
Corporation and shall perform such other duties and have such other powers
as
may be prescribed by the Board of Directors or these Amended and Restated
Bylaws, all in accordance with basic policies as established by and subject
to
the oversight of the Board of Directors and the Chairman and Chief Executive
Officer. The office of President may, at any time and from time to
time, be held by one or more persons. If the office of President is
held by more than one person, each person holding such office shall serve as
a
Co-President and each Co-President shall have general authority to exercise
all
the powers necessary for the President of the Corporation and shall perform
such
other duties and have such other powers as may be prescribed by the Board of
Directors or these Amended and Restated Bylaws, all in accordance with basic
policies as established by and subject to the oversight of the Board of
Directors and the Chairman and Chief Executive Officer.
SECTION
4.05.
Chief
Financial Officer
. The Chief Financial Officer shall have
responsibility for the financial affairs of the Corporation and shall exercise
supervisory responsibility for the performance of the duties of the Treasurer
and the Controller. The Chief Financial Officer shall perform such
other duties and have such other powers as may be prescribed by the Board of
Directors or these Amended and Restated Bylaws, all in accordance with basic
policies as established by and subject to the oversight of the Board of
Directors and the Chairman and Chief Executive Officer.
SECTION
4.06.
Chief Risk Officer
. The Chief Risk Officer
shall have the responsibility for the risk management and monitoring of the
Corporation. The Chief Risk Officer shall perform such other duties and have
such other powers as may be prescribed by the Board of Directors or these
Amended and Restated Bylaws, all in accordance with basic policies as
established by and subject to the oversight of the Board of Directors and the
Chairman and Chief Executive Officer.
SECTION
4.07.
Chief Legal Officer
. The Chief Legal
Officer shall have responsibility for the legal affairs of the
Corporation. The Chief Legal Officer shall perform such other duties
and have such other powers as may be prescribed by the Board of Directors or
these Amended and Restated Bylaws, all in accordance with basic policies as
established by and subject to the oversight of the Board of Directors and the
Chairman and Chief Executive Officer.
SECTION
4.08.
Vacancies
. A newly created office and a
vacancy in any office because of death, resignation, or removal may be filled
by
the Board of Directors for the unexpired portion of the terms at any meeting
of
the Board of Directors.
ARTICLE
5
STOCK
CERTIFICATES AND TRANSFERS
SECTION
5.01.
Stock
Certificates and Transfers
. (a) The interest of each
stockholder of the Corporation shall be evidenced by certificates representing
shares of stock in such form as the appropriate officers of the Corporation
may
from time to time prescribe; provided that the Board of Directors may provide
by
resolution or resolutions that all or some of all classes or series of the
stock
of the Corporation shall be represented by uncertificated
shares. Every holder of stock represented by certificates shall be
entitled to have a certificate signed by, or in the name of the Corporation
by
the Chairman of the Board and Chief Executive Officer, or the President or
any
other authorized officer and by the Treasurer or an Assistant Treasurer, or
the
Secretary or an Assistant Secretary of the Corporation representing the number
of shares registered in certificate form.
(b) The
shares of the stock
of the Corporation represented by certificates shall be transferred on the
books
of the Corporation by the holder thereof in person or by his attorney, upon
surrender for cancellation of certificates representing the same number of
shares, with an assignment and power of transfer endorsed thereon or attached
thereto, duly executed, with such proof of the authenticity of the signature
as
the Corporation or its agents may reasonably require. Upon receipt of
proper transfer instructions from the registered owner of uncertificated shares
such uncertificated shares shall be canceled and issuance of new equivalent
uncertificated shares shall be made to the person entitled thereto and the
transaction shall be recorded upon the books of the
Corporation. Within a reasonable time after the issuance or transfer
of uncertificated stock, the Corporation shall send to the registered owner
thereof a written notice containing the information required to be set forth
or
stated on certificates pursuant to the Delaware General Corporation Law or,
unless otherwise provided by the Delaware General Corporation Law, a statement
that the Corporation will furnish without charge to each stockholder who so
requests the powers, designations, preferences and relative participating,
optional or other special rights of each class of stock or series thereof and
the qualifications, limitations or restrictions of such preferences and/or
rights.
SECTION
5.02.
Lost,
Stolen or Destroyed Certificates
. No certificate for shares or
uncertificated shares of stock in the Corporation shall be issued in place
of
any certificate alleged to have been lost, destroyed or stolen, except on
production of such evidence of such loss, destruction or theft and on delivery
to the Corporation of a bond of indemnity in such amount, upon such terms and
secured by such surety, as the Board of Directors or its designee may in its
or
his discretion require.
ARTICLE
6
MISCELLANEOUS
PROVISIONS
SECTION
6.01.
Fiscal
Year
. The fiscal year of the Corporation shall be as specified
by the Board of Directors.
SECTION
6.02.
Dividends
. The Board of Directors may from
time to time declare, and the Corporation may pay, dividends on its outstanding
shares in the manner and upon the terms and conditions provided by law and
its
Amended and Restated Certificate of Incorporation.
SECTION
6.03.
Seal
. The corporate seal shall have thereon
the name of the Corporation and shall be in such form as may be approved from
time to time by the Board of Directors or by any officer authorized to do so
by
the Board of Directors.
SECTION
6.04.
Waiver of
Notice
. Whenever any notice is required to be given to any
stockholder or director of the Corporation under the provisions of the General
Corporation Law of the State of Delaware, a waiver thereof in writing, signed
by
the person or persons entitled to such notice, or a waiver by electronic
transmission by the person entitled to notice, whether before or after the
time
stated therein, shall be deemed equivalent to the giving of such
notice. Neither the business to be transacted at, nor the purpose of,
any annual or special meeting of the stockholders or any meeting of the Board
of
Directors or committee thereof need be specified in any waiver of notice of
such
meeting.
SECTION
6.05.
Audits
. The accounts, books and records of
the Corporation shall be audited upon the conclusion of each fiscal year by
an
independent certified public accountant.
SECTION
6.06.
Resignations
. Any director or any officer,
whether elected or appointed, may resign at any time upon notice of such
resignation to the Corporation.
SECTION
6.07.
Indemnification and Insurance
.
(a) Each
person who was or
is made a party or is threatened to be made a party to or is involved in any
manner in any threatened, pending or completed action, suit, or proceeding,
whether civil, criminal, administrative or investigative (hereinafter a
"proceeding"), by reason of the fact that he or she or a person of whom he
or
she is the legal representative is or was a director or officer of the
Corporation or a director or elected officer of a Subsidiary, shall be
indemnified and held harmless by the Corporation to the fullest extent permitted
from time to time by the General Corporation Law of the State of Delaware as
the
same exists or may hereafter be amended (but, if permitted by applicable law,
in
the case of any such amendment, only to the extent that such amendment permits
the Corporation to provide broader indemnification rights than said law
permitted the Corporation to provide prior to such amendment) or any other
applicable laws as presently or hereafter in effect, and such indemnification
shall continue as to a person who has ceased to be a director or officer and
shall inure to the benefit of his or her heirs, executors and administrators;
provided however, that the Corporation shall indemnify any such person seeking
indemnification in connection with a proceeding (or part thereof) initiated
by
such person only if such proceeding (or part thereof) was authorized by the
Board of Directors or is a proceeding to enforce such person's claim to
indemnification pursuant to the rights granted by this Bylaw. The
Corporation shall pay the expenses incurred by such person in defending any
such
proceeding in advance of its final disposition upon receipt (unless the
Corporation upon authorization of the Board of Directors waives such requirement
to the extent permitted by applicable law) of an undertaking by or
on
behalf
of
such person to repay such amount if it shall ultimately be determined that
such
person is not entitled to be indemnified by the Corporation as authorized in
this Bylaw or otherwise.
(b) The
indemnification and
the advancement of expenses incurred in defending a proceeding prior to its
final disposition provided by, or granted pursuant to, this Bylaw shall not
be
exclusive of any other right which any person may have or hereafter acquire
under any statute, provision of the Amended and Restated Certificate of
Incorporation, other provision of these Amended and Restated Bylaws, agreement,
vote of stockholders or Disinterested Directors or otherwise. No
repeal, modification or amendment of, or adoption of any provision inconsistent
with, this Section 6.07, nor to the fullest extent permitted by applicable
law,
any modification of law, shall adversely affect any right or protection of
any
person granted pursuant hereto existing at, or with respect to any events that
occurred prior to, the time of such repeal, amendment, adoption or
modification.
(c) The
Corporation may
maintain insurance, at its expense, to protect itself and any person who is
or
was a director, officer, partner, member, employee or agent of the Corporation
or a Subsidiary or of another corporation, partnership, limited liability
company, joint venture, trust or other enterprise against any expense, liability
or loss, whether or not the Corporation would have the power to indemnify such
person against such expense, liability or loss under the General Corporation
Law
of the State of Delaware.
(d) The
Corporation may, to
the extent authorized from time to time by the Board of Directors, grant rights
to indemnification, and rights to be paid by the Corporation the expenses
incurred in defending any proceeding in advance of its final disposition, to
any
person who is or was an employee or agent (other than a director or officer)
of
the Corporation or a Subsidiary and to any person who is or was serving at
the
request of the Corporation or a Subsidiary as a director, officer, partner,
member, employee or agent of another corporation, partnership, limited liability
company, joint venture, trust or other enterprise, including service with
respect to employee benefit plans maintained or sponsored by the Corporation
or
a Subsidiary, to the fullest extent of the provisions of this Bylaw with respect
to the indemnification and advancement of expenses of directors and officers
of
the Corporation.
(e) If
any provision or
provisions of this Bylaw shall be held to be invalid, illegal or unenforceable
for any reason whatsoever: (1) the validity, the legality and enforceability
of
the remaining provisions of this Bylaw (including, without limitation, each
portion of any paragraph or clause of this Bylaw containing any such provision
held to be invalid, illegal or unenforceable, that is not itself held to be
invalid, illegal or unenforceable) shall not in any way be affected or impaired
thereby; and (2) to the fullest extent possible, the provisions of this Bylaw
(including, without limitation, each such portion of any paragraph of this
Bylaw
containing any such provision held to be invalid, illegal or unenforceable)
shall be construed so as to give effect to the intent manifested by the
provision held invalid, illegal or unenforceable.
(f) For
purposes of these
Amended and Restated Bylaws:
(1) "Disinterested
Director"
means a director of the Corporation who is not and was not a party to the
proceeding or matter in respect of which indemnification is sought by the
claimant.
(2) “Subsidiary”
means
any
corporation, trust, limited liability company or other non-corporate business
enterprise in which the Corporation directly or indirectly holds ownership
interests representing (A) more than 50% of the voting power of all outstanding
ownership interests of such entity (other than directors’ qualifying shares, in
the case of a corporation) or (B) the right to receive more than 50% of the
net
assets of such entity available for distribution to the holders of outstanding
ownership interests upon a liquidation or dissolution of such
entity.
(g) Any
notice, request, or
other communication required or permitted to be given to the Corporation under
this Bylaw shall be in writing and either delivered in person or sent by
telecopy, telex, telegram, overnight mail or courier service, or certified
or
registered mail, postage prepaid, return receipt requested, to the Secretary
or
the Chief Legal Officer or any designee of the Secretary or the Chief Legal
Officer and shall be effective only upon receipt by such officer or
designee.
ARTICLE
7
CONTRACTS,
PROXIES, ETC.
SECTION
7.01.
Contracts
. Except as otherwise required by
law, the Amended and Restated Certificate of Incorporation or these Amended
and
Restated Bylaws, any contracts or other instruments may be executed and
delivered in the name and on the behalf of the Corporation by such officer
or
officers of the Corporation as the Board of Directors may from time to time
direct. Such authority may be general or confined to specific
instances as the Board may determine. Subject to the control and
direction of the Board of Directors, the Chairman of the Board and Chief
Executive Officer, the President, the Chief Financial Officer, the Chief Risk
Officer, the Chief Legal Officer and the Treasurer may enter into, execute,
deliver and amend bonds, promissory notes, contracts, agreements, deeds, leases,
guarantees, loans, commitments, obligations, liabilities and other instruments
to be made or executed for or on behalf of the Corporation. Subject
to any restrictions imposed by the Board of Directors, such officers of the
Corporation may delegate such powers to others under his or her jurisdiction,
it
being understood, however, that any such delegation of power shall not relieve
such officer of responsibility with respect to the exercise of such delegated
power.
SECTION
7.02.
Proxies
. Unless otherwise provided by
resolution adopted by the Board of Directors, the Chairman of the Board and
Chief Executive Officer or the President may from time to time appoint an
attorney or attorneys or agent or agents of the Corporation, in the name and
behalf of the Corporation, to cast the votes which the Corporation may be
entitled to cast as the holder of stock or other securities in any other
corporation or entity, any of whose stock or other securities may be held by
the
Corporation, at meetings of the holders of the stock or other securities of
such
other corporation or entity, or to consent in writing, in the name of the
Corporation as such holder, to any action by such other corporation or entity,
and may instruct the person or persons so appointed as to the manner of casting
such vote or giving such consent, and may execute or cause to be executed in
the
name and on behalf of the Corporation and under
its
corporate seal or otherwise, all such written proxies or other instruments
as he
may deem necessary or proper in the premises.
ARTICLE
8
AMENDMENTS
SECTION
8.01.
Amendments
. These Amended and Restated
Bylaws may be altered, amended or repealed, in whole or in part, or new Amended
and Restated Bylaws may be adopted by the stockholders or by the Board of
Directors at any meeting thereof; provided however, that notice of such
alteration, amendment, repeal or adoption of new Amended and Restated Bylaws
is
contained in the notice of such meeting of stockholders or in the notice of
such
meeting of the Board of Directors and, in the latter case, such notice is given
not less than twenty-four hours prior to the meeting. Unless a higher
percentage is required by the Amended and Restated Certificate of Incorporation
as to any matter which is the subject of these Amended and Restated Bylaws,
all
such amendments must be approved by either the holders of eighty percent (80%)
of the Voting Stock or by a majority of the Board of Directors.
16