EXHIBIT
3.1
BYLAWS
OF
IRON
MOUNTAIN INCORPORATED
(as
amended on December 7, 2007)
Section 1.1. Registered
Office. The registered office of the Corporation shall be located in
the City of Wilmington, County of New Castle, State of Delaware and the name
of
the resident agent in charge thereof shall be Corporation Service
Company.
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 Board of Directors
(hereinafter referred to as the "Board of Directors" or the "Board") may from
time to time appoint or the business of the Corporation may
require.
Section 1.3. Books. The books of the Corporation may be kept
within or without the State of Delaware as the Board of Directors may from
time
to time determine or the business of the Corporation may require.
ARTICLE
II—MEETINGS OF STOCKHOLDERS
Section 2.1. Time
and
Place of Meetings. All meetings of stockholders shall be held at such
place, either within or without the State of Delaware, on such date and at
such
time as the Board of Directors (or the Chairman in the absence of a designation
by the Board of Directors) may designate from time to time.
Section 2.2. Annual
Meeting. The annual meeting of stockholders shall be held for the
election of directors on such date and at such time as the Board of Directors
may designate from time to time. Any other proper business may be transacted
at
the annual meeting.
Section 2.3. Special
Meetings. Special meetings of the stockholders for any purpose or
purposes may be called only by the Chairman of the Board, if any, the President
or by the Board of Directors pursuant to a resolution adopted by a majority
vote
of the Board of Directors.
Section 2.4. Introduction
of Business At a Meeting of Stockholders. At an annual or special
meeting of stockholders, only such business shall be conducted, and only such
proposals shall be acted upon, as shall have been properly brought before such
annual or special meeting of stockholders. To be properly brought before an
annual or special meeting of stockholders, business must be (i) in the case
of a special meeting, specified in the notice of the special meeting (or any
supplement thereto) given by or at the direction of the Board of Directors
or
otherwise properly brought before the meeting by the Board of Directors, or
(ii) in the case of an annual meeting, properly brought before the meeting
by or at the direction of the Board of Directors, or otherwise properly brought
before the annual meeting by a stockholder who shall have been a stockholder
of
record on the record date for such meeting and shall continue to be entitled
to
vote thereat. For business to be properly brought before an annual meeting
of
stockholders by a stockholder, the stockholder must have given timely notice
thereof in writing to the Secretary of the Corporation. To be timely, a
stockholder notice must be delivered to, or mailed and received at, the
principal executive offices of the Corporation (A) in the case of an annual
meeting that is
called
for a date that is within 30 days before or after the anniversary date of
the immediately preceding annual meeting of stockholders, not less than 60
nor
more than 90 days prior to the first anniversary (the "Anniversary") of the
date the Corporation's proxy statement was mailed to stockholders in connection
with the previous year's annual meeting of stockholders, and (B) in the
case of an annual meeting that is called for a date that is not within
30 days before or after the anniversary date of the immediately preceding
annual meeting, not later than the later of (x) the 90th day prior
to such
annual meeting or (y) the close of business on the tenth day following the
day on which public disclosure of the date of the meeting was made.
In
order to be effective, a stockholder's notice to the Secretary shall set forth
as to each matter the stockholder proposes to bring before an annual meeting
of
stockholders (i) a brief description of the business desired to be brought
before the annual meeting, the reasons for conducting such business at the
annual meeting and, if a specific action is to be proposed, the text of the
resolution(s) which the proposing stockholder proposes that the stockholders
adopt, (ii) a representation that the stockholder is a holder of record of
the stock of the Corporation entitled to vote at such meeting, including the
class and number of shares of such stock that are owned beneficially and of
record by such stockholder, and intends to appear in person or by proxy at
the
meeting to bring the business specified in the notice before the meeting,
(iii) the name and address, as they appear on the Corporation's books, of
the stockholder proposing such business and any other stockholders known by
such
stockholder to be supporting such proposal, (iv) the class and number of
shares of the Corporation which are beneficially owned by any stockholders
known
by the proposing stockholder to be supporting such proposal on the date of
such
stockholder's notice, (v) whether such stockholder intends to deliver a
proxy statement and form of proxy to holders of, in the case of a proposal,
at
least the percentage of the Corporation's voting shares required under these
Bylaws and applicable law to carry the proposal (an affirmative statement of
such intent, a "Solicitation Notice"), and (vi) any material interest of
the stockholder in such proposal.
If
the stockholder has provided the
Corporation with a Solicitation Notice, such stockholder must have delivered
a
proxy statement and form of proxy to holders of at least the percentage of
the
Corporation's voting shares required under applicable law to carry such
proposal. If no Solicitation Notice relating thereto has been timely provided
pursuant to this Section, the stockholder proposing such business must not
have
solicited a number of proxies sufficient to have required the delivery of such
a
Solicitation Notice under this Section.
Notwithstanding
anything in these
Bylaws to the contrary, no business shall be conducted at a meeting of
stockholders except in accordance with the procedures set forth in this
Section 2.4. The Chairman of the meeting shall, if the facts warrant,
determine and declare to the meeting that any item of proposed business was
not
properly brought before the meeting in accordance with the procedures prescribed
by these Bylaws, 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.
The
foregoing requirements shall be in
addition to any other requirements imposed by applicable law or
regulation.
Section 2.5. Notice
of
Meetings; Waiver of Notice. (a) Written or printed notice of every
meeting of stockholders, annual or special, stating the hour, date and place
thereof, and the purpose or purposes in general terms for which the meeting
is
called shall, not less than ten (10) days, or such longer period as shall
be provided by law, the Certificate of Incorporation, these Bylaws, or
otherwise, and not more than sixty (60) days before such meeting, be served
upon or mailed to each stockholder entitled to vote thereat, at the address
of
such stockholder as it appears upon the stock records of the Corporation or,
if
such stockholder shall have filed with the Secretary of the Corporation a
written request that notices be mailed to some other address, then to the
address designated in such request.
(b) A
written waiver of any such notice signed by the person entitled thereto, 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 notice.
Attendance of a person at a meeting shall constitute a waiver of notice of
such
meeting, except when the person attends the meeting for the express purpose
of
objecting, at the beginning of the meeting, to the transaction of any business
because the meeting is not validly called or convened. Business transacted
at
any special meeting of stockholders shall be limited to the purposes stated
in
the notice.
Section 2.6.
Notice
by
Electronic Transmission. Without limiting the manner by which notice
otherwise may be given effectively to stockholders pursuant to the General
Corporation Law of the State of Delaware (the "Delaware Law"),
the Certificate of Incorporation or these Bylaws, any notice to
stockholders given by the Corporation under any provision of the Delaware 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. Any such consent shall be deemed revoked
if:
(i) the Corporation is unable to deliver by electronic transmission two
consecutive notices given by the Corporation in accordance with such consent;
and (ii) such inability becomes known to the Secretary or an Assistant Secretary
of the Corporation or to the transfer agent, or other person responsible for
the
giving of notice. However, the inadvertent failure to treat such inability
as a
revocation shall not invalidate any meeting or other action. Any notice given
pursuant to the preceding paragraph shall be deemed given: (i) if by facsimile
telecommunication, when directed to a number at which the stockholder has
consented to receive notice; (ii) if by electronic mail, when directed to an
electronic mail address at which the stockholder has consented to receive
notice; (iii) if by a posting on an electronic network together with separate
notice to the stockholder of such specific posting, upon the later of (A) such
posting and (B) the giving of such separate notice; and (iv) if by any other
form of electronic transmission, when directed to the stockholder. An affidavit
of the Secretary or an Assistant Secretary or of the transfer agent or other
agent of the Corporation that the notice has been given by a form of electronic
transmission shall, in the absence of fraud, be prima facie evidence of the
facts stated therein.
Section 2.7.
Definition of Electronic Transmission. An "electronic transmission"
means any form of communication, not directly involving the physical
transmission of paper, that creates a record that may be retained, retrieved,
and reviewed by a recipient thereof, and that may be directly reproduced in
paper form by such a recipient through an automated process.
Section 2.8. Quorum
and
Adjournments. Except as otherwise provided by law or by the
Certificate of Incorporation, or these bylaws and subject to the Delaware Law,
the presence, in person or by proxy, at any meeting of stockholders of the
holders of a majority of the voting power of the shares of the capital stock
of
the Corporation issued, outstanding and entitled to vote thereat shall be
requisite and shall constitute a quorum. If one or more
classes of stock are entitled to vote as separate classes upon any question,
then, in the case of such class, a quorum for the consideration of such question
shall, except as otherwise provided by law or by the Certificate of
Incorporation, consist of a majority of the voting power of all stock of that
class issued, outstanding and entitled to vote. If a majority of the voting
power of shares of capital stock of the Corporation issued and outstanding
and
entitled to vote thereat or, where a larger quorum is required, such quorum,
shall not be represented at any meeting of the stockholders regularly called,
the holders of a majority of the voting power of the shares present or
represented by proxy and entitled to vote thereat shall have power to adjourn
the meeting to another time, or to another time and place, without notice other
than announcement of adjournment at the meeting, and there may be successive
adjournments for like cause and in like manner until the requisite amount of
shares entitled to vote at such meeting shall be represented; provided, however,
that if the adjournment is for more than thirty (30) days, notice of the
hour, date and place of the adjourned meeting shall be given to
each
stockholder
entitled to vote thereat. Subject to the requirements of the Delaware Law and
the Certificate of Incorporation, on any issue on which one or more classes
of
stock are entitled to vote separately, no adjournment shall be taken with
respect to any class for which a quorum is present unless the Chairman of the
meeting otherwise directs. At any meeting held to consider matters which were
subject to adjournment for want of a quorum at which the requisite amount of
shares entitled to vote shall be represented, any business may be transacted
which might have been transacted at the meeting as originally
noticed.
Section 2.9. Votes;
Proxies. Except as otherwise provided in the Certificate of
Incorporation, and subject to the Delaware Law, at each meeting of stockholders,
every stockholder of record at the closing of the transfer books, if closed,
or
on the date set by the Board of Directors for the determination of stockholders
entitled to vote at such meeting, shall have one vote for each share of stock
entitled to vote which is registered in such stockholder's name on the books
of
the Corporation on such date.
At
each such meeting every stockholder
entitled to vote shall be entitled to do so in person, or by proxy appointed
by
an instrument in writing or as otherwise permitted by law subscribed by such
stockholder and bearing a date not more than three (3) years prior to the
meeting in question, unless said instrument provides for a longer period during
which it is to remain in force. A duly executed proxy shall be irrevocable
if it
states that it is irrevocable and if, and only as long as, it is coupled with
an
interest sufficient in law to support an irrevocable power. A proxy may be
made
irrevocable regardless of whether the interest with which it is coupled is
an
interest in the stock itself or any interest in the Corporation generally.
A
stockholder may revoke any proxy which is not irrevocable by attending the
meeting and voting in person or by filing with the Secretary of the Corporation
an instrument in writing or as otherwise permitted by law revoking the proxy
or
another duly executed proxy bearing a later date.
Voting
at meetings of stockholders need
not be by written ballot and, except as otherwise provided by law, need not
be
conducted by inspectors of election unless so determined by the Chairman of
the
meeting or by the holders of shares of stock having a majority of the votes
which could be cast by the holders of all outstanding shares of stock entitled
to vote thereon which are present in person or represented by proxy at such
meeting. If it is required or determined that inspectors of election be
appointed, the Chairman shall appoint one or more inspectors of election, who
shall first take and subscribe an oath or affirmation faithfully to execute
the
duties of inspectors at such meeting with strict impartiality and according
to
the best of their ability. The inspector(s) so appointed shall take charge
of
the polls and, after the balloting, shall make a certificate of the result
of
the vote taken. No director or candidate for the office of director shall be
appointed as such inspector.
Section 2.10. Organization. The
Chairman of the Board, if there be one, or in his or her absence the Vice
Chairman, or in the absence of a Vice Chairman, the President, or in the absence
of the President, a Vice President, shall call meetings of the stockholders
to
order and shall act as chairman thereof. The Secretary of the Corporation,
if
present, shall act as secretary of all meetings of stockholders, and, in his
or
her absence, the presiding officer may appoint a secretary.
ARTICLE
III—DIRECTORS
Section 3.1. General
Powers; Number and Term of Office. The business and affairs of the
Corporation shall be conducted and managed by a Board of Directors, none of
whom
needs to be a stockholder. Except as otherwise provided by the Delaware Law,
the
Certificate of Incorporation or these
Bylaws,
the number of directors shall be fixed by the Board of Directors (and not by
the
stockholders) from time to time, in each case by a vote of a majority of the
directors in office at the time, regardless of whether such majority constitutes
a quorum, provided that no decrease shall affect the term of any director then
in office. If the number is not so fixed at any meeting or after an event giving
rise to a vacancy, the number shall remain as it stood immediately prior to
such
meeting or event. The number of directors shall not be less than
three.
Section 3.2. Nomination
of Directors. Only persons nominated in accordance with the procedures set
forth in this Section 3.2 shall be eligible for election as directors.
Nominations of persons for election to the Board of Directors may be made at
a
meeting of stockholders (i) by or at the direction of the Board of
Directors or a committee of Directors appointed by the Board, or (ii) by
any stockholder of the Corporation who shall have been a stockholder of record
on the record date for such meeting and shall continue to be entitled to vote
thereat who complies with the notice procedures set forth in this
Section 3.2. Such nominations, other than those made by or at the direction
of the Board, 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, or mailed and received at, the principal executive offices of
the
Corporation (i) in the case of an annual meeting that is called for a date
that is within 30 days before or after the anniversary date of the
immediately preceding annual meeting of stockholders, not less than 60 days
nor more than 90 days prior to the Anniversary, and (ii) in the case
of an annual meeting that is called for a date that is not within 30 days
before or after the anniversary date of the immediately preceding annual
meeting, or in the case of a special meeting of stockholders called for the
purpose of electing Directors, not later than the later of (x) the 90th day prior
to such
annual meeting or (y) the close of business on the tenth day following the
day on which public disclosure of the date of the meeting was made;
provided, however, such time periods shall be subject to
Rule 14a-8 of the Securities Exchange Act of 1934, as amended, or any
successor provision thereto, to the extent applicable. Notwithstanding anything
in these Bylaws to the contrary, in the event that the
number of directors to be elected to the Board of Directors at an annual meeting
of the stockholders is increased and there is no public announcement by the
Corporation naming all of the nominees for director or specifying the size
of
the increased Board of Directors at least one hundred (100) days prior to
the first anniversary of the date of mailing of notice for the preceding year's
annual meeting (or, if the annual meeting is held more than thirty
(30) days before or after such anniversary date, at least one hundred
(100) days prior to such annual meeting), a stockholder's notice required
by this Section 3.2 shall also be considered timely, but only with respect
to nominees for any new positions created by such increase, if it shall be
delivered to the Secretary at the principal executive office of the Corporation
not later than the close of business on the tenth (10th) day following the
day
on which such public announcement is first made by the Corporation.
In
order to be effective, a
stockholder's notice to the Secretary shall set forth (i) as to each person
whom the stockholder proposes to nominate for election or reelection as a
director (a) the name, age, business address and residence address of such
person, (b) the principal occupation or employment of such person,
(c) the class and number of shares of the Corporation which are
beneficially owned by such person on the date of such stockholder's notice
and
(d) any other 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 without limitation such person's
written consent to being named in the proxy statement as a nominee and to
serving as a director if elected), and (ii) as to the stockholder giving
the notice, (a) a representation that the stockholder is a holder of record
of shares of the Corporation entitled to vote at such meeting, including the
class and number of shares of such stock that are owned beneficially and of
record by such stockholder, and intends to appear in person or by proxy at
the
meeting to nominate the person or persons specified in the notice, (b) the
name and address, as they appear on the Corporation's books, of such stockholder
and any other stockholders known by such stockholder to be supporting such
nominee(s), (c) the class and number of shares of the Corporation which are
beneficially owned by any other
stockholders
known by such stockholder to be supporting such nominee(s) on the date of such
stockholder's notice, (d) a Solicitation Notice or a statement that the
stockholder does not intend to deliver a proxy statement and form of proxy
to
holders of a sufficient number of holders of the Corporation's voting shares
to
elect such nominee or nominees, and (d) 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.
If
the stockholder has provided the
Corporation with a Solicitation Notice, such stockholder must, at least fifteen
days prior to the date of such meeting, have delivered a proxy statement and
form of proxy to holders of a percentage of the Corporation's voting shares
reasonably believed by such stockholder to be sufficient to elect the nominee
or
nominees proposed to be nominated by such stockholder. If no Solicitation Notice
relating thereto has been timely provided pursuant to this Section 3.2, the
stockholder proposing such nomination must not have solicited a number of
proxies sufficient to have required the delivery of such a Solicitation Notice
under this Section 3.2.
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 Bylaws, and if
he
should so determine, he shall so declare to the meeting and the defective
nomination shall be disregarded.
The
foregoing requirements shall be in
addition to any other requirements imposed by applicable law or
regulation.
Section 3.4.
Vacancies.
If any vacancy shall occur among the directors, or if the number of directors
shall at any time be increased, such vacancy shall be filled only by the
directors then in office, although less than a quorum, by a majority vote of
the
directors then in office or by the sole remaining director, or, only if no
directors then remain, by the stockholders of the Corporation.
Section 3.5.
Meetings.
Meetings of the Board of Directors shall be held at such place, within or
without the State of Delaware, as may from time to time be fixed by resolution
of the Board of Directors or by the Chairman of the Board, if there be one,
or
by the President, and as may be specified in the notice or waiver of notice
of
any meeting. Meetings may be held at any time upon the call of the Chairman
of
the Board, if there be one, or the President or a majority of the directors
in
office by personal oral communication, telephonic oral communication, telecopy
or electronic transmission, or written notice, duly served or sent or mailed
to
each director not less than twenty-four (24) hours before such meeting,
except that, if mailed, not less than seventy-two (72) hours before such
meeting.
Meetings
may be held at any time and
place without notice if all the directors are present and do not object to
the
holding of such meeting for lack of proper notice or if those not present shall,
in writing or by telecopy or electronic transmission, waive notice thereof
before or after the meeting. A regular meeting of the Board may be held without
notice immediately following the annual meeting of stockholders at the place
where such meeting is held. Regular meetings of the Board may also be held
without notice at such time and place as shall from time to time be determined
by resolution of the Board.
Except
as
otherwise provided by the Delaware Law, the Certificate of Incorporation or
otherwise, neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the Board of Directors or any committee thereof
need be specified in any written waiver of notice.
Section 3.6.
Telephone
Meetings. Members of the Board of Directors, or any committee thereof, may
participate in a meeting of such Board of Directors, or any committee, by means
of video conference, telephone conference or similar communications equipment
by
means of which all persons participating in the meeting can hear each other,
and
such participation in a meeting pursuant to the foregoing provisions shall
constitute presence in person at the meeting.
Section 3.7.
Votes.
Except as otherwise provided by law, the Certificate of Incorporation or these
Bylaws, the vote of the majority of the directors present at a meeting at which
a quorum is present shall be the act of the Board of Directors.
Section 3.8.
Quorum
and
Adjournment. Except as otherwise provided by the Delaware Law, the
Certificate of Incorporation or these Bylaws, a majority of the directors shall
constitute a quorum for the transaction of business. If at any meeting of the
Board there shall be less than a quorum present, a majority of those present
may
adjourn the meeting from time to time without notice other than announcement
of
the adjournment at the meeting, and at such adjourned meeting at which a quorum
is present any business may be transacted which might have been transacted
at
the meeting as originally noticed.
Section 3.9.
Compensation. Directors may receive compensation for their services, as
such, and for service on any committee of the Board of Directors, as fixed
by
resolution of the Board of Directors and for expenses of attendance at each
regular or special meeting of the Board or any committee thereof. Nothing in
this Section shall be construed to preclude a director from serving the
Corporation in any other capacity and receiving compensation
therefor.
Section 3.11.
Resignation. Any director may resign at any time by giving notice in
writing or by electronic transmission to the Board of Directors or to the
Secretary. The resignation of any director shall take effect upon receipt of
notice thereof or at such later time as shall be specified in such notice;
and
unless otherwise specified therein, the acceptance of such resignation shall
not
be necessary to make it effective.
ARTICLE
IV—COMMITTEES OF DIRECTORS
Section 4.1.
Establishment
and
Powers. The Board of Directors of the Corporation may, by resolution
adopted by a majority of the Directors in office, establish one or more
committees to consist of one or more Directors of the Corporation. Any
committee, to the extent provided in the resolution of the Board of Directors
or
in the Bylaws, shall have and may exercise all of the powers and authority
of
the Board of Directors, except that a committee shall not have any power or
authority as to the following:
(a) approving
or adopting, or recommending to the stockholders, any action or matter expressly
required by the Delaware Law to be submitted to stockholders for approval;
or
(b) adopting,
amending or repealing of the Bylaws.
Section 4.2.
Alternate
Members. 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 or for the purpose of any written action
by the committee. In the absence or disqualification of a member and alternate
member or members of a committee, the member or members thereof present at
a
meeting and not disqualified from voting, whether or not he, she or they
constitute a quorum, may unanimously appoint another Director to act at the
meeting in the place of the absent or disqualified member.
Section 4.3.
Term.
Each
committee of the Board of Directors shall serve at the pleasure of the Board
of
Directors.
Section 4.4.
Status
of
Committee Action. The term "Board of Directors" or "Board," when used in
any provision of these Bylaws relating to the organization or procedures of
or
the manner of taking action by the Board of Directors, shall be construed to
include and refer to any executive or other committee of the Board of Directors.
Any provision of these Bylaws relating or referring to action to be taken by
the
Board of Directors or the procedure required therefor shall be satisfied by
the
taking of corresponding action by a committee of the Board of Directors to
the
extent authority to take the action has been delegated to the committee pursuant
to this Section, except that the executive committee, if any, shall have
authority to act in all matters in which the Board of Directors is empowered
to
act whenever it is impracticable to hold a meeting of the Board of Directors,
except to the extent provided in Section 4.1 of these Bylaws.
ARTICLE
V—OFFICERS
Section 5.1.
Office.
The
Board of Directors shall elect a President, a Secretary and a Treasurer, and,
in
their discretion, may elect a Chairman of the Board, a Vice Chairman of the
Board, a Controller, and one or more Executive Vice Presidents, Senior Vice
Presidents, Vice Presidents, Assistant Secretaries, Assistant Treasurers and
Assistant Controllers and such other officers as deemed necessary or
appropriate. Such officers shall be elected annually by the Board of Directors
at its first meeting following the annual meeting of stockholders (or at such
other meeting as the Board of Directors determines), and each shall hold office
for the term provided by the vote of the Board, except that each will be subject
to removal from office in the discretion of the Board as provided herein. The
powers and duties of more than one office may be exercised and performed by
the
same person.
Section 5.3.
Chairman
of the
Board. The Chairman of the Board of Directors, if any, shall be the chief
executive officer of the Corporation, and, subject to the direction of the
Board
of Directors, shall have general charge of the management and direction of
the
business, affairs and property of the Corporation, and general supervision
over
its other officers and agents, and, when present, shall preside at all meetings
of the stockholders and the Board of Directors. The Chairman of the Board of
Directors shall perform such other duties and have such other powers as the
Board of Directors shall designate from time to time.
Section 5.4.
President.
The President shall be the chief operating officer of the Corporation. In
general, he shall perform all duties incident to the office of President and
chief operating officer and shall see that all orders and resolutions of the
Board of Directors are carried into effect and shall perform
such
other
executive, supervisory and management functions and duties as may be assigned
to
him from time to time by the Board of Directors or the Chairman of the
Board.
Section 5.5.
Vice
Presidents. Each Executive Vice President, Senior Vice President and Vice
President shall have and exercise such powers and shall perform such duties
as
from time to time may be assigned to him or to her by the Board of Directors,
the Chairman or the President.
Section 5.6.
Secretary.
The Secretary shall keep the minutes of all meetings of the stockholders and
of
the Board of Directors and committees of the Board in books provided for the
purpose and shall see that all notices are duly given in accordance with the
provisions of law and these Bylaws. The Secretary shall be custodian of the
records and of the corporate seal or seals of the Corporation and shall see
that
the corporate seal is affixed to all documents the execution of which, on behalf
of the Corporation under its seal, is duly authorized, and, when the seal is
so
affixed, he or she may attest the same. Without limiting the generality of
the
foregoing, in general, the Secretary shall perform all duties incident to the
office of secretary of a corporation, and such other duties as from time to
time
may be assigned to him or her by the Board of Directors.
Section 5.7.
Assistant
Secretaries. The Assistant Secretaries in order of their seniority shall,
in the absence or disability of the Secretary, perform the duties and exercise
the powers of the Secretary and shall perform such other duties as the Board
of
Directors shall prescribe or as from time to time may be assigned by the
Secretary.
Section 5.8.
Treasurer.
The Treasurer shall have charge of and be responsible for all funds, securities,
receipts and disbursements of the Corporation, and shall deposit, or cause
to be
deposited, in the name of the Corporation, all monies or other valuable effects
in such banks, trust companies or other depositaries as shall, from time to
time, be selected by the Board of Directors. The Treasurer may endorse for
collection on behalf of the Corporation checks, notes and other obligations;
may
sign receipts and vouchers for payments made to the Corporation and may sign
checks of the Corporation, singly or jointly with another person as the Board
of
Directors may authorize, and pay out and dispose of the proceeds under the
direction of the Board. The Treasurer shall render to the President and to
the
Board of Directors, whenever requested, an account of the financial condition
of
the Corporation; and in general, shall perform all the duties incident to the
office of treasurer of a corporation, and such other duties as from time to
time
may be assigned by the Board of Directors.
Section 5.9.
Assistant
Treasurers. The Assistant Treasurers in order of their seniority shall, in
the absence or disability of the Treasurer, perform the duties and exercise
the
powers of the Treasurer and shall perform such other duties as the Board of
Directors shall prescribe or as from time to time may be assigned by the
Treasurer.
Section 5.11.
Assistant
Controllers. The Assistant Controllers in order of their seniority shall,
in the absence or disability of the Controller, perform the duties and exercise
the powers of the Controller and shall perform such other duties as the Board
of
Directors shall prescribe or as from time to time may be assigned by the
Controller.
Section 5.12.
Subordinate
Officers. The Board of Directors may appoint such subordinate officers as
it may deem desirable. Each such officer shall hold office for such period,
have
such authority and perform such duties as the Board of Directors may prescribe.
The Board of Directors may, from time to time, authorize any officer to appoint
and remove subordinate officers and to prescribe the powers and duties
thereof.
Section 5.13.
Compensation. The Board of Directors shall fix the compensation of all
officers of the Corporation. It may authorize any officer, upon whom the power
of appointing subordinate officers may have been conferred, to fix the
compensation of such subordinate officers.
Section 5.14.
Removal.
Any officer of the Corporation may be removed, with or without cause, by action
of the Board of Directors.
Section 5.15.
Bonds.
The
Board of Directors may require any officer of the Corporation to give a bond
to
the Corporation, conditional upon the faithful performance of his or her duties,
with one or more sureties and in such amount as may be satisfactory to the
Board
of Directors.
Section 5.16.
Resignation. Any officer may resign at any time by giving notice in
writing or by electronic transmission to the Board of Directors (or to a
principal officer to whom such officer reports). The resignation of any officer
shall take effect upon receipt of notice thereof or at such later time as shall
be specified in such notice; and unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it
effective.
ARTICLE
VI—CERTIFICATES OF STOCK
Section 6.1.
Form
and
Execution of Certificates. The interest of each stockholder of the
Corporation may either be evidenced by a certificate or certificates for shares
of stock in such form as the Board of Directors may from time to time prescribe,
or may be uncertificated as provided in Section 6.6 below. The certificates
of
stock of each class shall be consecutively numbered and signed by the Chairman
or Vice Chairman of the Board, if any, the President, an Executive Vice
President, Senior Vice President or a Vice President and by the Secretary,
an
Assistant Secretary, the Treasurer or an Assistant Treasurer of the Corporation,
and may be countersigned and registered in such manner as the Board of Directors
may by resolution prescribe, and shall bear the corporate seal or a printed
or
engraved facsimile thereof. Where any such certificate is signed by a transfer
agent or transfer clerk acting on behalf of the Corporation, the signatures
of
any such Chairman, Vice Chairman, President, Executive Vice President, Senior
Vice President, Vice President, Treasurer, Assistant Treasurer, Secretary or
Assistant Secretary may be facsimiles, engraved or printed. In case any officer
or officers who shall have signed, or whose facsimile signature or signatures
shall have been used on, any such certificate or certificates, shall cease
to be
such officer or officers, whether because of death, resignation or otherwise,
before such certificate or certificates shall have been delivered by the
Corporation, such certificate or certificates may nevertheless be issued and
delivered by the Corporation as though the person or persons who signed such
certificate or certificates or whose facsimile signature or signatures shall
have been used thereon had not ceased to be such officer or
officers.
In
case the corporate seal which has
been affixed to, impressed on, or reproduced in any such certificate or
certificates shall cease to be the seal of the Corporation before such
certificate or certificates have been delivered by the Corporation, such
certificate or certificates may nevertheless be issued and delivered by the
Corporation as though the seal affixed thereto, impressed thereon or reproduced
therein had not ceased to be the seal of the Corporation.
Every
certificate for shares of stock
which are subject to any restriction on transfer pursuant to law, the
Certificate of Incorporation, these Bylaws, or any agreement to which the
Corporation is a party, shall have the restriction noted conspicuously on the
certificate, and shall also set forth, on the face or back, either the full
text
of the restriction or a statement of the existence of such restriction and
(except if such restriction is imposed by law) a statement that the Corporation
will furnish a copy thereof to the holder of such certificate upon written
request and without charge.
Every
certificate issued when the
Corporation is authorized to issue more than one class or series of stock shall
set forth on its face or back either the full text of the preferences, voting
powers, qualifications, and special and relative rights of the shares of each
class and series authorized to be issued, or a statement of the existence of
such preferences, powers, qualifications and rights, and a statement that the
Corporation will furnish a copy thereof to the holder of such certificate upon
written request and without charge.
Section 6.2.
Transfer
of
Shares. The shares of the stock of the Corporation shall be transferred on
the books of the Corporation by the holder thereof in person or by his or her
attorney lawfully constituted, upon (i) in the case of certificated shares,
surrender for cancellation of certificates for the same number of shares, with
an assignment and power of transfer endorsed thereon or attached thereto, duly
executed, with such proof or guaranty of the authenticity of the signature
as
the Corporation or its agents may reasonably require or (ii) in the case of
uncertificated shares, receipt of proper transfer instructions from the holder
of record of such shares or such holder’s attorney lawfully constituted. 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 or shares
on the part of any other person whether or not it shall have express or other
notice thereof, save as expressly provided by law, by the Certificate of
Incorporation or these Bylaws. It shall be the duty of each stockholder to
notify the Corporation of his or her post office address.
Section 6.3.
Fixing
Date for
Determination of Stockholders of Record. 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 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 (but not
the
stockholders) 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: (a) in the case of determination of
stockholders entitled to vote at any meeting of stockholders or adjournment
thereof, shall, unless otherwise required by law, the Certificate of
Incorporation or these Bylaws, not be more than sixty (60) nor less than
ten (10) days before the date of such meeting; and (b) in the case of
any other action, shall not be more than sixty (60) days prior to such
other action. If no record date is fixed: (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; and (b) 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
(but
not the stockholders) may fix a new record date for the adjourned
meeting.
Section 6.4.
Closing
of
Transfer Books. The stock transfer books of the Corporation may, if deemed
appropriate by the Board of Directors, be closed for such length of time not
exceeding fifty (50) days as the Board of Directors (but not the
stockholders) may determine, preceding the date of any meeting of stockholders
or the date for the payment of any dividend or the date for the allotment of
rights or the date
when
any
issuance, change, conversion or exchange of capital stock shall go into effect,
during which time no transfer of stock on the books of the Corporation may
be
made.
Section 6.5.
Lost
or Destroyed
Certificates. Unless waived in whole or in part by the Board of Directors
or any officer acting pursuant to the direction of the Board of Directors,
any
person requesting the issuance of a new certificate in lieu of an alleged lost,
destroyed, mislaid or wrongfully taken certificate shall (a) give to the
Corporation his or her bond of indemnity with an acceptable surety, and
(b) satisfy such other requirements as may be imposed by the Corporation.
Thereupon, a new share certificate shall be issued to the registered owner
or
his or her assigns in lieu of the alleged lost, destroyed, mislaid or wrongfully
taken certificate, provided that the request therefor and issuance thereof
have
been made before the Corporation has notice that such shares have been acquired
by a bona fide purchaser.
Section 6.6.
Uncertificated
Shares. Upon the adoption of a resolution by the Board of
Directors permitting it, shares of the Corporation’s capital stock may also be
evidenced by registration in the holder’s name in uncertificated, book-entry
form on the books of the Corporation in accordance with a direct registration
system approved by the Securities and Exchange Commission and by any securities
exchange on which the stock of the Corporation may from time to time be
traded.
Section 6.7.
Transfer
Agents
and Registrars; Further Regulations. The Board of Directors may appoint one
or more banks, trust companies or corporations doing a corporate trust business,
in good standing under the laws of the United States or any state therein,
to
act as the Corporation's transfer agent and/or registrar for shares of one
or
more classes or series of its stock, and the Board may make such other and
further regulations, not inconsistent with applicable law, as it may deem
expedient concerning the issue, transfer and registration of the Corporation's
stock and stock certificates.
ARTICLE
VII—EXECUTION OF DOCUMENTS
Section 7.1.
Execution
of
Checks, Notes, etc. All checks and drafts on the Corporation's bank
accounts and all bills of exchange and promissory notes, and all acceptances,
obligations and other instruments for the payment of money, shall be signed
by
such officer or officers, or agent or agents, as shall be thereunto authorized
from time to time by the Board of Directors, which may in its discretion
authorize any such signatures to be facsimile.
Section 7.2.
Execution
of
Contracts, Assignments, etc. Unless the Board of Directors shall have
otherwise provided generally or in a specific instance, all contracts,
agreements, endorsements, assignments, transfers, stock powers, or other
instruments shall be signed by the Chairman or Vice Chairman of the Board,
if
any, the President, any Executive Vice President, any Senior Vice President,
any
Vice President, the Secretary, any Assistant Secretary, the Treasurer or any
Assistant Treasurer. The Board of Directors may, however, in its discretion,
require any or all such instruments to be signed by any two or more of such
officers, or may permit any or all of such instruments to be signed by such
other officer or officers, agent or agents, as it shall thereunto authorize
from
time to time.
Section 7.3.
Execution
of
Proxies. The Chairman or Vice Chairman of the Board, if any, the President,
any Executive Vice President, any Senior Vice President or any Vice President,
and the Secretary, the Treasurer, any Assistant Secretary or any Assistant
Treasurer, or any other officer designated by the Board of Directors, may sign
on behalf of the Corporation proxies to vote upon shares of stock of other
companies standing in the name of the Corporation.
ARTICLE
VIII—INSPECTION OF BOOKS
The
Board of Directors shall determine
from time to time whether, and if allowed, to what extent and at what time
and
places and under what conditions and regulations, the accounts and books of
the
Corporation (except such as may by law be specifically open to inspection)
or
any of them, shall be open to the inspection of the stockholders, and no
stockholder shall have any right to inspect any account or book or document
of
the Corporation, except as conferred by the laws of the State of Delaware,
unless and until authorized so to do by resolution of the Board of Directors
or
of the stockholders of the Corporation.
ARTICLE
IX—FISCAL YEAR
The
fiscal year of the Corporation
shall be determined from time to time by vote of the Board of
Directors.
ARTICLE
X—SEAL
The
seal of the Corporation shall,
subject to alteration by the Board of Directors, consist of a flat-faced
circular die with the word "Delaware", together with the name of the Corporation
and the year of incorporation, cut or engraved thereon.
ARTICLE
XI—AMENDMENTS
These
Bylaws may be altered, amended,
changed or repealed and new Bylaws adopted by the stockholders or by the Board
of Directors, in either case at any meeting called for that purpose at which
a
quorum shall be present. Any Bylaw, whether made, altered, amended, changed
or
repealed by the stockholders or the Board of Directors, may be repealed,
amended, changed, further amended, changed, repealed or reinstated, as the
case
may be, either by the stockholders or by the Board of Directors as above
provided.
ARTICLE
XII—LIMITATION OF DIRECTORS' LIABILITY AND INDEMNIFICATION OF DIRECTORS,
OFFICERS AND OTHER PERSONS
Section 12.1.
Actions,
Suits
and Proceedings Other than by or in the Right of the Corporation. The
Corporation shall indemnify and hold harmless, to the fullest extent permitted
by applicable law as it presently exists or may hereafter be amended, any person
who was or is a party or threatened to be made a party to or is otherwise
involved in any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the Corporation) by reason of the fact that he or she
is
or was, or has agreed to become, a director or officer of the Corporation,
or is
or was serving, or has agreed to serve, at the request of the Corporation,
as a
director, officer, partner, employee or trustee of, or in a similar capacity
with, another corporation, partnership, joint venture, trust or other enterprise
or nonprofit entity (including any employee benefit plan) (all such persons
being referred to hereafter as an "Indemnitee"), or by reason of any action
alleged to have been taken or omitted in such capacity, against all expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by or on behalf of the Indemnitee in connection
with such action, suit or proceeding and any appeal therefrom, if the Indemnitee
acted in good faith and in a manner which the Indemnitee reasonably believed
to
be in, or not opposed to, the best interests of the Corporation, and, with
respect to any criminal action or proceeding, had no reasonable cause to believe
the Indemnitee’s conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the Indemnitee did not act in good faith and in a manner which the Indemnitee
reasonably believed to be in, or not opposed to, the best interests of the
Corporation, and, with respect to any criminal action or proceeding, shall
not
create a presumption that
the
Indemnitee did not have reasonable cause to believe that his or her conduct
was
unlawful.
Section
12.2. Actions or Suits by
or in the Right of the Corporation. The Corporation shall indemnify any
Indemnitee who was or is a party to or threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that the
Indemnitee is or was, or has agreed to become, a director or officer of the
Corporation, or is or was serving, or has agreed to serve, at the request of
the
Corporation, as a director, officer, partner, employee or trustee of, or in
a
similar capacity with, another corporation, partnership, joint venture, trust
or
other enterprise (including any employee benefit plan), or by reason of any
action alleged to have been taken or omitted in such capacity, against all
expenses (including attorneys' fees) and, to the extent permitted by law,
amounts paid in settlement actually and reasonably incurred by or on behalf
of
the Indemnitee in connection with such action, suit or proceeding and any appeal
therefrom, if the Indemnitee acted in good faith and in a manner which the
Indemnitee reasonably believed to be in, or not opposed to, the best interests
of the Corporation, except that no indemnification shall be made under this
Section 12.2 in respect of any claim, issue or matter as to which the Indemnitee
shall have been adjudged to be liable to the Corporation, unless, and only
to
the extent, that the Court of Chancery of Delaware or the court in which such
action or suit was brought shall determine upon application that, despite the
adjudication of such liability but in view of all the circumstances of the
case,
the Indemnitee is fairly and reasonably entitled to indemnity for such expenses
(including attorneys' fees) which the Court of Chancery of Delaware or such
other court shall deem proper.
Section 12.3.
Definition
of
Entitlement;Success on the Merits. Any indemnification under
Section 12.1 or 12.2 (unless ordered by a court) shall be made by the
Corporation only as authorized in the specific case upon a determination that
indemnification of the person requesting such is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in
Section 12.1 or 12.2, as the case may be. Such determination shall be made
(a) by the Board of Directors, by a majority vote of directors who are not
parties to such action, suit or proceeding (whether or not a quorum),
(b) by a committee of such directors designated by majority vote of such
directors (whether or not a quorum), (c) if there are no disinterested directors
or if a majority of disinterested directors so directs, by independent legal
counsel (who may be regular legal counsel to the corporation) in a written
opinion, or (d) by the stockholders. To the extent, however, that any
person referred to in Section 12.1 or 12.2 has been successful on the
merits or otherwise in defense of any action, suit or proceeding referred to
therein or in defense of any claim, issue or matter therein, he or she shall
be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him or her in connection therewith.
Section 12.4.
Expense
Advance. Expenses (including attorneys' fees) incurred by an officer or
director of the Corporation in defending any pending or threatened civil,
criminal, administrative or investigative action, suit or proceeding may be
paid
by the Corporation in advance of the final disposition of such action, suit
or
proceeding as authorized by the Board of Directors in the manner provided in
Section 12.3 of this Article upon receipt of an undertaking by or on behalf
of
such officer or director 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 12.5.
Nonexclusively. The indemnification and advancement of expenses
provided by, or granted pursuant to, the other Sections of this Article shall
not be deemed exclusive of any other rights to which any person seeking
indemnification or advancement of expenses may be entitled under the Certificate
of Incorporation or any statute, 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. The
provisions of this Article XII shall not be deemed to preclude the
indemnification of any person who is not specified in Section 12.1 or 12.2
but whom the Corporation has the power to indemnify under applicable law or
otherwise.
Section 12.6.
Insurance.
The Corporation shall have the power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of
the
Corporation, or is or was serving at the request of the Corporation as a
director, trustee, partner, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise or nonprofit entity,
against any liability asserted against and incurred by such person in any such
capacity, or arising out of his or her status as such, whether or not the
Corporation would have the obligation to indemnify such person against liability
under this Article or the power to indemnify such person against such liability
under the provisions of Section 145 of the Delaware Law.
Section 12.7.
Other
Indemnification. The Corporation's obligation, if any, to indemnify any
person who was or is serving at its request as a director, trustee, partner,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise or nonprofit entity shall be reduced by any amount
such person may collect as indemnification from such other corporation,
partnership, joint venture, trust or other enterprise or nonprofit entity or
from insurance.
Section 12.8.
Continuation
of
Indemnification. The indemnification and advancement of expenses provided
by, or granted pursuant to, this Article shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director,
trustee, partner, officer, employee or agent and shall inure to the benefit
of
the heirs, executors and administrators of such a person.
Section 12.9.
Limitation
on
Indemnification. Notwithstanding anything contained in this
Article XII to the contrary, except for proceedings to enforce rights to
indemnification, the Corporation shall not be obligated to indemnify any
director or officer (or his or her heirs, executors or personal or legal
representative) or advance expenses in connection with a proceeding (or part
thereof) initiated by such person unless such proceeding (or part thereof)
was
authorized or consented to by the Board of Directors.
Section 12.10.
Indemnification
of Employees and Agents. The Corporation may, to the extent authorized from
time to time by the Board of Directors, provide rights to indemnification and
to
the advancement of expenses to employees and agents of the Corporation similar
to those conferred in this Article XII to Directors and officers of the
Corporation.
Section 12.11.
Other
Rights. The indemnification and advancement of expenses provided by this
Article shall not be deemed exclusive of any other rights to which an Indemnitee
seeking indemnification or advancement of expenses may be entitled under any
law
(common or statutory), agreement or vote of stockholders or disinterested
directors or otherwise, both as to action in the Indemnitee's official capacity
and as to action in any other capacity while holding office for the Corporation,
and shall continue as to an Indemnitee who has ceased to be a director or
officer, and shall inure to the benefit of the estate, heirs, executors and
administrators of the Indemnitee. Nothing contained in this Article shall be
deemed to prohibit, and the Corporation is specifically authorized to enter
into, agreements with officers and directors providing indemnification rights
and procedures different from those set forth in this Article. In addition,
the
Corporation may, to the extent authorized from time to time by its Board of
Directors, grant indemnification rights to other employees or agents of the
Corporation or other persons serving the Corporation and such rights may be
equivalent to, or greater or less than, those set forth in this
Article.
Section 12.13.
Amendment.
The provisions of this Article XII relating to the limitation of Directors'
liability, to indemnification and to the advancement of expenses shall
constitute a contract between the Corporation and each of its Directors and
officers which may be modified as to any Director or officer in respect of
any
act or omission occurring prior to the date of any such modification only with
that person's consent or as specifically provided in this Section.
Notwithstanding any other provision of these Bylaws relating to their amendment
generally, any repeal or amendment of this Article XII which
is
adverse
to any Director or officer shall apply to such Director or officer only on
a
prospective basis, and shall not reduce any limitation on the personal liability
of a director of the Corporation, or limit the rights of an Indemnitee to
indemnification or to the advancement of expenses with respect to any action
or
failure to act occurring prior to the time of such repeal or amendment.
Notwithstanding any other provision of these Bylaws, no repeal or amendment
of
these Bylaws shall affect any or all of this Article so as either to reduce
the
limitation of directors' liability or limit indemnification or the advancement
of expenses in any manner unless adopted by (a) the unanimous vote of the
Directors of the Corporation then serving, or (b) the affirmative vote of
stockholders entitled to cast not less than a majority of the votes that all
stockholders are entitled to cast in the election of Directors; provided that
no
such amendment shall have retroactive effect inconsistent with the preceding
sentence.
Section 12.14.
Savings
Clause. If this Article or any portion hereof shall be invalidated on any
ground by any court of competent jurisdiction, then the Corporation shall
nevertheless indemnify each Indemnitee as to any expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement in connection with any
action, suit, proceeding or investigation, whether civil, criminal or
administrative, including an action by or in the right of the Corporation,
to
the fullest extent permitted by any applicable portion of this Article that
shall not have been invalidated and to the fullest extent permitted by
applicable law.
Section 12.15.
Definitions. Terms used herein and defined in Section 145(h) and
Section 145(i) of the Delaware Law shall have the respective meanings assigned
to such terms in such Section 145(h) and Section 145(i).
ARTICLE
XIII INTERPRETATION OF BYLAWS—SEPARABILITY
Section 13.1.
Interpretation. All words, terms and provisions of these Bylaws shall
be interpreted and defined by and in accordance with the Delaware Law. If any
provision of these Bylaws shall be inconsistent with any provision of the
Certificate of Incorporation, the provision of the Certificate of Incorporation
shall prevail. Where any provision of these Bylaws refers to a rule or process
as set forth in these Bylaws, the reference shall be construed to include and
be
satisfied by any rule or process on the same subject set forth in the
Certificate of Incorporation.
Section 13.2.
Separability. The provisions of these Bylaws are independent of and
separable from each other, and no provision shall be affected or rendered
invalid or unenforceable by virtue of the fact that for any reason any other
or
others of them may be invalid or unenforceable in whole or in part.
ARTICLE
XIV—DETERMINATIONS BY THE BOARD
Section 14.1.
Effect
of Board
Determinations. Any determination involving interpretation or application
of these Bylaws made in good faith by the Board of Directors shall be final,
binding and conclusive on all parties in interest.
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