Exhibit 3.1
CELANESE CORPORATION
THIRD AMENDED AND RESTATED BY-LAWS
Effective as of October 23, 2008
ARTICLE I
OFFICES
Section 1.01.
Registered Office
. The Corporation shall maintain its registered office in the
State of Delaware at The Corporation Trust Company, 1209 Orange Street, Wilmington, Delaware 19801.
The Corporation may also have offices in such other places in the United States or elsewhere as the
Board of Directors may, from time to time, appoint or as the business of the Corporation may
require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 2.01.
Annual Meetings
. Annual meetings of stockholders may be held at such place,
either within or without the State of Delaware, and at such time and date as the Board of Directors
shall determine. The Board of Directors may, in its sole discretion, determine that the meeting
shall not be held at any place, but may instead be held solely by means of remote communication as
described in Section 2.11 of these By-laws in accordance with Section 211(a)(2) of the General
Corporation Law of the State of Delaware (the DGCL).
Section 2.02.
Special Meetings
. Subject to the Certificate of Incorporation, special
meetings of stockholders, unless otherwise prescribed by statute, may be called at any time by the
Chairman of the Board, the Board of Directors or a committee of the Board of Directors which has
been duly designated by the Board of Directors and whose powers and authority, as provided in a
resolution of the Board of Directors, include the power to call special meetings of stockholders
and no special meetings of stockholders shall be called by any other person or persons.
Section 2.03.
Notice of Stockholder Nominations and Other Business.
(A)
Annual Meetings of Stockholders.
(1) Nominations of persons for election to the Board of Directors and the proposal of business
other than nominations to be considered by the stockholders may be made at an annual meeting of
stockholders only: (a) pursuant to the Corporations notice of meeting (or any supplement thereto);
(b) by or at the direction of the Chairman of the Board or 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 paragraphs (A)(2) and (A)(3) of this Section 2.03 and who was a stockholder
of record at the time such notice is delivered to the Secretary of the Corporation.
(2) For nominations or other business to be properly brought before an annual meeting by a
stockholder pursuant to clause (c) of paragraph (A)(1) of this Section 2.03, the stockholder must
have given timely notice thereof in writing to the Secretary of the Corporation, and any such
proposed business other than nominations of persons for election to the Board of Directors must
constitute a proper matter for stockholder action. To be timely, a stockholders notice must be
delivered to the Secretary of the Corporation at the principal executive offices of the Corporation
not later than the close of business on the ninetieth (90th) day nor earlier than the close of
business on the one hundred twentieth (120th) day prior to the first anniversary of the preceding
years annual meeting; provided, however, that in the event that the date of the annual meeting is
changed by more than thirty (30) days from the anniversary date of the previous years meeting,
notice by the stockholder to be timely must be so delivered not earlier than the close of business
on the one hundred twentieth (120th) day prior to such annual meeting and not later than the close
of business on the later of the ninetieth (90th) day prior to such annual meeting or the tenth
(10th) day following the day on which public announcement (as defined below) of the date of such
meeting is first made by the Corporation. Public announcement of an adjournment or postponement of
an annual meeting shall not
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commence a new time period (or extend any time period) for the giving of a stockholders
notice.
(3) Such stockholders notice also shall set forth: (a) as to each person whom the stockholder
proposes to nominate for election or reelection as a director: (i) 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 and in accordance with
Regulation 14A under the Securities Exchange Act of 1934, as amended (the Exchange Act), and (ii)
such persons 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
in the event that such business includes a proposal to amend the By-laws of the Corporation, the
language 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 (within the
meaning of Section 13(d) of the Exchange Act), if any, on whose behalf the business is being
proposed; (c) as to the stockholder giving the notice and the beneficial owner, if any, on whose
behalf the nomination is made or the other business is being proposed: (i) the name and address of
such stockholder, as they appear on the Corporations books and records, and the name and address
of such beneficial owner, (ii) the class and number of shares of capital stock of the Corporation
which are owned of record by such stockholder and such beneficial owner as of the date of the
notice, and the stockholders agreement to notify the Corporation in writing within five (5)
business days after the record date for such meeting of the class and number of shares of capital
stock of the Corporation owned of record by the stockholder and such beneficial owner as of the
record date for the meeting, (iii) a representation that the stockholder intends to appear in
person or by proxy at the meeting to propose such nomination or other business; and (d) as to the
stockholder giving the notice or, if the notice is given on behalf of a beneficial owner on whose
behalf the nomination is made or the other business is being proposed, as to such beneficial owner:
(i) the class and number of shares of capital stock of the Corporation which are beneficially owned
by such stockholder or beneficial owner as of the date of the notice, and the stockholders
agreement to notify the Corporation in writing within five (5) business days after the record date
for such meeting of the class and number of shares of capital stock of the Corporation beneficially
owned by such stockholder or beneficial owner as of the record date for the meeting, (ii) a
description of any agreement, arrangement or understanding with respect to the nomination or other
business between or among such stockholder or beneficial owner and any other person, including
without limitation any agreements that would be required to be described or reported pursuant to
Item 5 or Item 6 of Exchange Act Schedule 13D (regardless of whether the requirement to file a
Schedule 13D is applicable to the stockholder or beneficial owner) and the stockholders agreement
to notify the Corporation in writing within five (5) business days after the record date for such
meeting of any such agreement, arrangement or understanding in effect as of the record date for the
meeting, (iii) a description of any agreement, arrangement or understanding (including any
derivative or short positions, profit interests, options, hedging transactions, and borrowed or
loaned shares) that has been entered into as of the date of the stockholders notice by, or on
behalf of, such stockholder or beneficial owner, the effect or intent of which is to mitigate loss,
manage risk or benefit from changes in the share price of any class of the Corporations capital
stock, or increase or decrease the voting power of the stockholder or beneficial owner with respect
to shares of stock of the Corporation, and the stockholders agreement to notify the Corporation in
writing within five (5) business days after the record date for such meeting of any such agreement,
arrangement or understanding in effect as of the record date for the meeting, and (iv) a
representation whether the stockholder or the beneficial owner, if any, intends or is part of a
group which intends: (x) to deliver a proxy statement and/or form of proxy to holders of at least
the percentage of the Corporations outstanding capital stock required to elect the nominee or
approve or adopt the other business being proposed and/or (y) otherwise to solicit proxies from
stockholders in support of such nomination or other business. The foregoing notice requirements
shall not apply to a stockholder if the stockholder has notified the Corporation of his or her
intention to present a stockholder proposal at an annual meeting only pursuant to and in compliance
with Rule 14a-8 (or any successor thereof) promulgated under the Exchange Act and such
stockholders proposal 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, including information relevant
to a determination as to whether such proposed nominee can be considered an independent director.
(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 Corporations
notice of meeting. Nominations of persons for election to the Board of Directors may be made at a
special meeting of stockholders at
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which directors are to be elected pursuant to the Corporations notice of meeting: (1) by or
at the direction of the Board of Directors or (2) provided that the Board of Directors has
determined that directors shall be elected at such meeting, by any stockholder of the Corporation
who is entitled to vote at the meeting, who complies with the notice procedures set forth in this
Section 2.03 and who is a stockholder of record at the time such notice is delivered to the
Secretary of the Corporation. In the event the Corporation calls a special meeting of stockholders
for the purpose of electing one or more directors to the Board of Directors, any such stockholder
entitled to vote in such election of directors may nominate a person or persons (as the case may
be) for election to such position(s) as specified in the Corporations notice of meeting, if the
stockholders notice as required by paragraphs (A)(2) and (A)(3) of this Section 2.03 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 (120th) day prior to such special meeting and
not later than the close of business on the later of the ninetieth (90th) day prior to such special
meeting or the tenth (10th) day following the day on which public announcement is first made by the
Corporation of the date of the special meeting and of the nominees proposed by the Board of
Directors to be elected at such meeting. 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 stockholders notice as described above.
(C)
General
. (1) Only such persons who are nominated in accordance with the procedures set
forth in this Section 2.03 shall be eligible for election to serve as directors and only such other
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 Section. Except as otherwise provided
by law, the Certificate of Incorporation or these By-laws, the Chairman of the Board shall have the
power and duty to determine whether a nomination or any other business proposed to be brought
before the meeting was made or proposed, as the case may be, in accordance with the procedures set
forth in these By-laws (including whether the stockholder or beneficial owner, if any, on whose
behalf the nomination is made or other business is being proposed solicited (or is part of a group
which solicited) or did not so solicit, as the case may be, proxies in support of such
stockholders nominee or other business in compliance with such stockholders representation as
required by clause (d)(iv) of paragraph A(3) of this Section 2.03). If any proposed nomination or
other business is not in compliance with these By-laws, the chairman of the meeting of stockholders
shall have the power and duty to declare to the meeting that any such nomination or other business
was not properly brought before the meeting and in accordance with the provisions of these By-laws,
and that such nomination or other business not properly brought before the meeting shall not be
transacted. Notwithstanding the foregoing provisions of this Section 2.03, unless otherwise
required by law, if the stockholder does not provide the information required under clauses (c)(ii)
and (d)(i)-(iii) of paragraph A(3) of this Section 2.03 to the Corporation within five (5) business
days following the record date for an annual or special meeting of stockholders of the Corporation
or if the stockholder (or a qualified representative of the stockholder) does not appear at the
annual or special meeting to present a nomination or other business, such nomination shall be
disregarded and such other business shall not be transacted, notwithstanding that proxies in
respect of such vote may have been received by the Corporation. For purposes of this Section 2.03,
to be considered a qualified representative of the stockholder, a person must be authorized by a
writing executed by such stockholder or an electronic transmission delivered by such stockholder to
act for such stockholder as proxy at the meeting of stockholders and such person must produce such
writing or electronic transmission, or a reliable reproduction of the writing or electronic
transmission, at the meeting of stockholders.
(2) Whenever used in these By-laws, public announcement shall mean disclosure: (a) in a
press release released by the Corporation, provided such press release is released by the
Corporation following its customary procedures, as reported by the Dow Jones News Service,
Associated Press or a comparable national news service, or is generally available on internet news
sites, or (b) in a document publicly filed by the Corporation with the Securities and Exchange
Commission pursuant to Sections 13, 14 or 15(d) of the Exchange Act.
(3) Nothing in these By-laws shall be deemed to affect any rights of the holders of any class
or series of stock having a preference over the Common Stock as to dividends or upon liquidation to
elect directors under specified circumstances.
Section 2.04.
Notice of Meetings
. Whenever stockholders are required or permitted to take
any action at a meeting, a timely written notice or electronic transmission, in the manner provided
in Section 232 of the DGCL, of the meeting, which shall state the place, if any, date and time of
the meeting, and the means of remote communications, if any, by which stockholders and proxyholders
may be deemed to be present in person and vote at
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such meeting, and, in the case of a special meeting, the purposes for which the meeting is
called, shall be mailed to or transmitted electronically by the Secretary of the Corporation to
each stockholder of record entitled to vote thereat. Unless otherwise provided by law, the
certificate of incorporation or these by-laws, the notice of any meeting shall be given not less
than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder
entitled to vote at such meeting.
Section 2.05.
Quorum
. Unless otherwise required by law or the Certificate of Incorporation,
the holders of a majority of the voting power of the outstanding shares of stock entitled to vote
thereat, present in person or represented by proxy, shall constitute a quorum for the transaction
of business at all meetings of stockholders. When a quorum is once present to organize a meeting,
the quorum is not broken by the subsequent withdrawal of any stockholders.
Section 2.06.
Voting
. At all meetings of the stockholders, each stockholder shall be
entitled to vote, in person or by proxy, the shares of voting stock owned by such stockholder of
record on the record date for the meeting. When a quorum is present or represented at any meeting,
the vote of the holders of a majority of the voting power of the shares of stock present in person
or represented by proxy and entitled to vote thereon shall decide any question brought before such
meeting, unless the question is one upon which, by express provision of law, the rules or
regulations of any stock exchange applicable to the Corporation, or applicable law or pursuant to
any regulation applicable to the Corporation or its securities, of the Certificate of Incorporation
or of these By-laws, a different vote is required, in which case such express provision shall
govern and control the decision of such question. Notwithstanding the foregoing sentence, at each
meeting of the stockholders for the election of directors at which a quorum is present, each
director shall be elected by the vote of the majority of the votes cast; provided, that if as of a
date that is ten (10) days in advance of the date the corporation files its definitive proxy
statement (regardless of whether or not thereafter revised or supplemented) with the Securities and
Exchange Commission the number of nominees exceeds the number of directors to be elected, the
directors, not exceeding the authorized number of directors as fixed by the Board of Directors in
accordance with the Certificate of Incorporation, shall be elected by a plurality of the shares
represented in person or by proxy at any such meeting and entitled to vote on the election of
directors. For purposes of this Section, a majority of the votes cast means that the number of
shares voted for a director must exceed the number of shares voted against that director. If,
for any cause, the Board of Directors shall not have been elected at an annual meeting, they may be
elected as soon thereafter as convenient at a special meeting of the stockholders called for that
purpose in the manner provided in these By-laws.
Section 2.07.
Chairman of Meetings
. The Chairman of the Board of Directors, if one is
elected, or, in his absence or disability, the President of the Corporation, shall preside at all
meetings of the stockholders.
Section 2.08.
Secretary of Meeting
. The Secretary of the Corporation shall act as Secretary
at all meetings of the stockholders. In the absence or disability of the Secretary, the Chairman of
the Board of Directors or the President shall appoint a person to act as Secretary at such
meetings.
Section 2.09.
Consent of Stockholders in Lieu of Meeting
. Except as otherwise provided in
the Certificate of Incorporation, any action required to be taken at any annual or special meeting
of stockholders of the Corporation, or any action which may be taken at any annual or special
meeting of the stockholders, may be taken without a meeting, without prior notice and without a
vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by
the holders of outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares entitled to vote
thereon were present and voted and shall be delivered to the Corporation by delivery to its
registered office in Delaware, its principal place of business, or an officer or agent of the
Corporation having custody of the book in which proceedings of meetings of stockholders are
recorded. Delivery made to the Corporations registered office shall be made by hand or by
certified or registered mail, return receipt requested.
Every written consent shall bear the date of signature of each stockholder who signs the
consent and no written consent shall be effective to take the corporate action referred to therein
unless, within 60 days of the date the earliest dated consent is delivered to the Corporation, a
written consent or consents signed by a sufficient number of holders to take action are delivered
to the Corporation in the manner prescribed in the first paragraph of this Section 2.09. A
telegram, cablegram or other electronic transmission consenting to an action to be taken and
transmitted by a stockholder or proxyholder, or by a person or persons authorized to act for a
stockholder or
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proxyholder, shall be deemed to be written, signed and dated for the purposes of this Section
2.09 to the extent permitted by law. Any such consent shall be delivered in accordance with Section
228(d)(1) of the DGCL. Prompt notice of the taking of the corporate action without a meeting by
less than unanimous written consent shall be given to those stockholders who have not consented in
writing or electronic transmission and who, if the action had been taken at a meeting, would have
been entitled to notice of the meeting if the record date of such meeting had been the date that
written consents signed by a sufficient number of stockholders or members to take the action were
delivered to the Corporation as provided by law.
Any copy, facsimile or other reliable reproduction of a consent in writing may be substituted
or used in lieu of the original writing for any and all purposes for which the original writing
could be used, provided that such copy, facsimile or other reproduction shall be a complete
reproduction of the entire original writing.
Section 2.10.
Adjournment
. At any meeting of stockholders of the Corporation, if less than a
quorum be present, a majority of the stockholders entitled to vote thereat, present in person or by
proxy, shall have the power to adjourn the meeting from time to time without notice other than
announcement at the meeting until a quorum shall be present. Any business may be transacted at the
adjourned meeting that might have been transacted at the meeting originally noticed. If the
adjournment is for more than thirty (30) days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
Section 2.11.
Remote Communication
. If authorized by the Board of Directors in its sole
discretion, and subject to such guidelines and procedures as the Board of Directors may adopt,
stockholders and proxy holders not physically present at a meeting of stockholders may, by means of
remote communication:
(a) participate in a meeting of stockholders; and
(b) be deemed present in person and vote at a meeting of stockholders whether such meeting is
to be held at a designated place or solely by means of remote communication,
provided
, that
(i) the Corporation shall implement reasonable measures to verify that each person deemed
present and permitted to vote at the meeting by means of remote communication is a stockholder or
proxyholder;
(ii) the Corporation shall implement reasonable measures to provide such stockholders and
proxyholders a reasonable opportunity to participate in the meeting and to vote on matters
submitted to the stockholders, including an opportunity to read or hear the proceedings of the
meeting substantially concurrently with such proceedings; and
(iii) if any stockholder or proxyholder votes or takes other action at the meeting by means of
remote communication, a record of such vote or other action shall be maintained by the Corporation.
ARTICLE III
BOARD OF DIRECTORS
Section 3.01.
Powers
. The business and affairs of the Corporation shall be managed by or
under the direction of its Board of Directors. The Board of Directors shall exercise all of the
powers and duties conferred by law except as provided by the Certificate of Incorporation or these
By-laws.
Section 3.02.
Number and Term
. Subject to the Certificate of Incorporation, the number of
directors shall be fixed by resolution of the Board of Directors. The Board of Directors shall be
elected by the stockholders at their annual meeting, and the term of each elected director shall be
as set forth in the Certificate of Incorporation. Directors need not be stockholders.
Section 3.03.
Resignations
. Any director may resign at any time upon notice given in writing
or by electronic transmission. The resignation shall take effect at the time specified therein, and
if no time is specified, at
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the time of its receipt by the President or Secretary. The acceptance of a resignation shall
not be necessary to make it effective.
Section 3.04.
Removal
. Directors of the Corporation may be removed in the manner provided in
the Certificate of Incorporation.
Section 3.05.
Vacancies and Newly Created Directorships
. Vacancies occurring on the Board of
Directors and newly created directorships resulting from any increase in the number of directors
shall be filled in accordance with the Certificate of Incorporation.
Section 3.06.
Meetings
. Regular meetings of the Board of Directors may be held at such
places and times as shall be determined from time to time by the Board of Directors or as may be
specified in a notice of meeting. Special meetings of the Board of Directors may be called by the
President, and shall be called by the President or the Secretary if directed by the Board of
Directors. Notice need not be given of regular meetings of the Board of Directors. At least one
business day before each special meeting of the Board of Directors, written or oral (either in
person or by telephone), notice of the time, date and place of the meeting and the purpose or
purposes for which the meeting is called, shall be given to each director.
Section 3.07.
Quorum, Voting and Adjournment
. One-third of the total number of directors or
any committee thereof shall constitute a quorum for the transaction of business. Except as
otherwise provided by law, the Certificate of Incorporation, these By-laws or any contract or
agreement to which the Corporation is a party, the act of a majority of the directors present at a
meeting at which a quorum is present shall be the act of the Board of Directors. In the absence of
a quorum, a majority of the directors present thereat may adjourn such meeting to another time and
place. Notice of such adjourned meeting need not be given if the time and place of such adjourned
meeting are announced at the meeting so adjourned.
Section 3.08.
Committees
. The Board of Directors may by resolution designate one or more
committees, including but not limited to an Audit Committee, each such committee to consist of one
or more of the directors of the Corporation. The Board of Directors may designate one or more
directors as alternate members of any committee to replace any absent or disqualified member at any
meeting of the committee. In the absence or disqualification of a member of a committee, the member
or members present at any meeting and not disqualified from voting, whether or not he or they
constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any such absent or disqualified member. Any such committee, to the extent
provided in the resolution of the Board of Directors establishing such committee, shall have and
may exercise all the powers and authority of the Board of Directors in the management of the
business and affairs of the Corporation, and may authorize the seal of the Corporation to be
affixed to all papers which may require it; but no such committee shall have the power or authority
in reference to the following matters: (a) approving or adopting, or recommending to the
stockholders, any action or matter (other than the election or removal of directors) expressly
required by the DGCL to be submitted to stockholders for approval or (b) adopting, amending or
repealing any by-law of the Corporation. All committees of the Board of Directors shall keep
minutes of their meetings and shall report their proceedings to the Board of Directors when
requested or required by the Board of Directors.
Section 3.09.
Action Without a Meeting
. Unless otherwise restricted by the Certificate of
Incorporation, any action required or permitted to be taken at any meeting of the Board of
Directors or of any committee thereof may be taken without a meeting if all members of the Board of
Directors or any committee thereof, 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 in
the minutes of proceedings of the Board of Directors. Such filing shall be in paper form if the
minutes are maintained in paper form or shall be in electronic form if the minutes are maintained
in electronic form.
Section 3.10.
Compensation
. The Board of Directors shall have the authority to fix the
compensation of directors for their services. A director may also serve the Corporation in other
capacities and receive compensation therefore.
Section 3.11.
Remote Meeting
. Unless otherwise restricted by the Certificate of
Incorporation, members of the Board of Directors, or any committee designated by the Board of
Directors, may participate in a meeting by
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means of conference telephone or other communications equipment in which all persons
participating in the meeting can hear each other. Participation in a meeting by means of conference
telephone or other communications equipment shall constitute the presence in person at such
meeting.
ARTICLE IV
OFFICERS
Section 4.01.
Number
. The officers of the Corporation shall include a President and a
Secretary, both of whom shall be elected by the Board of Directors and who shall hold office for
such terms as shall be determined by the Board of Directors and until their successors are elected
and qualify or until their earlier resignation or removal. In addition, the Board of Directors may
elect a Chairman of the Board of Directors, one or more Vice Presidents, including an Executive
Vice President, a Treasurer and one or more Assistant Treasurers and one or more Assistant
Secretaries, who shall hold their office for such terms and shall exercise such powers and perform
such duties as shall be determined from time to time by the Board of Directors. The initial
officers shall be elected at the first meeting of the Board of Directors and, thereafter, at the
annual organizational meeting of the Board of Directors. Any number of offices may be held by the
same person.
Section 4.02.
Other Officers and Agents
. The Board of Directors may appoint such other
officers and agents as it deems advisable, who shall hold their office for such terms and shall
exercise and perform such powers and duties as shall be determined from time to time by the Board
of Directors.
Section 4.03.
Chairman
. The Chairman of the Board of Directors shall be a member of the
Board of Directors and shall preside at all meetings of the Board of Directors and of the
stockholders. In addition, the Chairman of the Board of Directors shall have such powers and
perform such other duties as from time to time may be assigned to him by the Board of Directors.
Section 4.04.
President
. The President shall be the Chief Executive Officer of the
Corporation. He shall exercise such duties as customarily pertain to the office of President and
Chief Executive Officer, and shall have general and active management of the property, business and
affairs of the Corporation, subject to the supervision and control of the Board of Directors. He
shall perform such other duties as prescribed from time to time by the Board of Directors or these
By-laws.
In the absence, disability or refusal of the Chairman of the Board of Directors to act, or the
vacancy of such office, the President shall preside at all meetings of the stockholders and of the
Board of Directors. Except as the Board of Directors shall otherwise authorize, the President shall
execute bonds, mortgages and other contracts on behalf of the Corporation, and shall cause the seal
to be affixed to any instrument requiring it and, when so affixed, the seal shall be attested by
the signature of the Secretary or an Assistant Secretary or the Treasurer or an Assistant
Treasurer.
Section 4.05.
Vice Presidents
. Each Vice President, if any are elected, of whom one or more
may be designated an Executive Vice President, shall have such powers and shall perform such duties
as shall be assigned to him by the President or the Board of Directors.
Section 4.06.
Treasurer
. The Treasurer shall have custody of the corporate funds,
securities, evidences of indebtedness and other valuables of the Corporation and shall keep full
and accurate accounts of receipts and disbursements in books belonging to the Corporation. He shall
deposit all moneys and other valuables in the name and to the credit of the Corporation in such
depositories as may be designated by the Board of Directors. The Treasurer shall disburse the funds
of the Corporation, taking proper vouchers therefore. He shall render to the President and Board of
Directors, upon their request, a report of the financial condition of the Corporation. If required
by the Board of Directors, he shall give the Corporation a bond for the faithful discharge of his
duties in such amount and with such surety as the Board of Directors shall prescribe.
The Treasurer shall have such further powers and perform such other duties incident to the
office of Treasurer as from time to time are assigned to him by the Board of Directors.
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Section 4.07.
Secretary
. The Secretary shall: (a) cause minutes of all meetings of the
stockholders and directors to be recorded and kept; (b) cause all notices required by these By-laws
or otherwise to be given properly; (c) see that the minute books, stock books, and other
nonfinancial books, records and papers of the Corporation are kept properly; and (d) cause all
reports, statements, returns, certificates and other documents to be prepared and filed when and as
required. The Secretary shall have such further powers and perform such other duties as prescribed
from time to time by the Board of Directors.
Section 4.08.
Assistant Treasurers and Assistant Secretaries
. Each Assistant Treasurer and
each Assistant Secretary, if any are elected, shall be vested with all the powers and shall perform
all the duties of the Treasurer and Secretary, respectively, in the absence or disability of such
officer, unless or until the Board of Directors shall otherwise determine. In addition, Assistant
Treasurers and Assistant Secretaries shall have such powers and shall perform such duties as shall
be assigned to them by the Board of Directors.
Section 4.09.
Corporate Funds and Checks
. The funds of the Corporation shall be kept in such
depositories as shall from time to time be prescribed by the Board of Directors. All checks or
other orders for the payment of money shall be signed by the President or the Secretary or such
other person or agent as may from time to time be authorized and with such countersignature, if
any, as may be required by the Board of Directors.
Section 4.10.
Contracts and Other Documents
. The President and the Secretary, or such other
officer or officers as may from time to time be authorized by the Board of Directors or any other
committee given specific authority in the premises by the Board of Directors during the intervals
between the meetings of the Board of Directors, shall have power to sign and execute on behalf of
the Corporation deeds, conveyances and contracts, and any and all other documents requiring
execution by the Corporation.
Section 4.11.
Compensation
. The compensation of the officers of the Corporation shall be
fixed from time to time by the Board of Directors (subject to any employment agreements that may
then be in effect between the Corporation and the relevant officer). None of such officers shall be
prevented from receiving such compensation by reason of the fact that he is also a director of the
Corporation. Nothing contained herein shall preclude any officer from serving the Corporation, or
any subsidiary, in any other capacity and receiving such compensation by reason of the fact that he
is also a director of the Corporation.
Section 4.12.
Ownership of Stock of Another Corporation
. Unless otherwise directed by the
Board of Directors, the President or the Secretary, or such other officer or agent as shall be
authorized by the Board of Directors, shall have the power and authority, on behalf of the
Corporation, to attend and to vote at any meeting of stockholders of any corporation in which the
Corporation holds stock and may exercise, on behalf of the Corporation, any and all of the rights
and powers incident to the ownership of such stock at any such meeting, including the authority to
execute and deliver proxies and consents on behalf of the Corporation.
Section 4.13.
Delegation of Duties
. In the absence, disability or refusal of any officer to
exercise and perform his duties, the Board of Directors may delegate to another officer such powers
or duties.
Section 4.14.
Resignation and Removal
. Any officer of the Corporation may be removed from
office for or without cause at any time by the Board of Directors. Any officer may resign at any
time in the same manner prescribed under Section 3.03 of these By-laws.
Section 4.15.
Vacancies
. The Board of Directors shall have power to fill vacancies occurring
in any office.
ARTICLE V
STOCK
Section 5.01.
Certificates of Stock
. The shares of stock of the Corporation shall be
represented by certificates, provided that the Board of Directors may provide by resolution or
resolutions that some or all of any or all classes or series of the Corporations stock shall be
uncertificated shares. Any such resolution shall not apply to shares represented by a certificate
until such certificate is surrendered to the Corporation. Notwithstanding the adoption of such a
resolution by the Board of Directors, every holder of stock represented by certificates shall be
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entitled to have a certificate signed by, or in the name of the Corporation by, the Chairman
of the Board of Directors or the President or a Vice President and by the Treasurer or an Assistant
Treasurer or the Secretary or an Assistant Secretary, certifying the number and class of shares of
stock in the Corporation owned by him. Any or all of the signatures on the certificate may be a
facsimile. The Board of Directors shall have the power to appoint one or more transfer agents
and/or registrars for the transfer or registration of certificates of stock of any class, and may
require stock certificates to be countersigned or registered by one or more of such transfer agents
and/or registrars.
Section 5.02.
Transfer of Shares
. Shares of stock of the Corporation shall be transferable
upon its books by the holders thereof, in person or by their duly authorized attorneys or legal
representatives, upon surrender to the Corporation by delivery thereof to the person in charge of
the stock and transfer books and ledgers. Such certificates shall be cancelled and new certificates
shall thereupon be issued. A record shall be made of each transfer. Whenever any transfer of shares
shall be made for collateral security, and not absolutely, it shall be so expressed in the entry of
the transfer if, when the certificates are presented, both the transferor and transferee request
the Corporation to do so. The Board of Directors shall have power and authority to make such rules
and regulations as it may deem necessary or proper concerning the issue, transfer and registration
of certificates for shares of stock of the Corporation.
Section 5.03.
Lost, Stolen, Destroyed or Mutilated Certificates
. A new certificate of stock
may be issued in the place of any certificate previously issued by the Corporation alleged to have
been lost, stolen or destroyed, and the Board of Directors may, in their discretion, require the
owner of such lost, stolen or destroyed certificate, or his legal representative, to give the
Corporation a bond, in such sum as the Board of Directors may direct, in order to indemnify the
Corporation against any claims that may be made against it in connection therewith. A new
certificate of stock may be issued in the place of any certificate previously issued by the
Corporation that has become mutilated without the posting by the owner of any bond upon the
surrender by such owner of such mutilated certificate.
Section 5.04.
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 to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or
exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a
record date, which record date shall not precede the date upon which the resolution fixing the
record date is adopted by the Board of Directors, and which record date: (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, not be more than sixty (60) nor less than ten
(10) days before the date of such meeting; (b) in the case of determination of stockholders
entitled to express consent to corporate action in writing without a meeting, shall not be more
than ten (10) days after the date upon which the resolution fixing the record date is adopted by
the Board of Directors; and (c) 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: (x) 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; (y) the
record date for determining stockholders entitled to express consent to corporate action in writing
without a meeting, when no prior action of the Board of Directors is required by law, shall be the
first date on which a signed written consent setting forth the action taken or proposed to be taken
is delivered to the corporation in accordance with applicable law, or, if prior action by the Board
of Directors is required by law, shall be at the close of business on the day on which the Board of
Directors adopts the resolution taking such prior action; and (z) the record date for determining
stockholders for any other purpose shall be at the close of business on the day on which the Board
of Directors adopts the resolution relating thereto. A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned
meeting.
Section 5.05.
Registered Stockholders
. Prior to the surrender to the Corporation of the
certificate or certificates for a share or shares of stock with a request to record the transfer of
such share or shares, the Corporation may treat the registered owner as the person entitled to
receive dividends, to vote, to receive notifications, and otherwise to exercise all the rights and
powers of an owner. To the fullest extent permitted by law, the Corporation 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.
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ARTICLE VI
NOTICE AND WAIVER OF NOTICE
Section 6.01.
Notice
. If mailed, notice to stockholders shall be deemed given when deposited
in the mail, postage prepaid, directed to the stockholder at such stockholders address as it
appears on the records of the Corporation. Without limiting the manner by which notice otherwise
may be given effectively to stockholders, any notice to stockholders may be given by electronic
transmission in the manner provided in Section 232 of the DGCL.
Section 6.02.
Waiver of Notice
. A written waiver of any notice, signed by a stockholder or
director, or waiver by electronic transmission by such person, whether given before or after the
time of the event for which notice is to be given, shall be deemed equivalent to the notice
required to be given to such person. Neither the business nor the purpose of any meeting need be
specified in such a waiver. Attendance at any meeting (in person or by remote communication) shall
constitute waiver of notice except attendance for the express purpose of objecting at the beginning
of the meeting to the transaction of any business because the meeting is not lawfully called or
convened.
ARTICLE VII
INDEMNIFICATION
Section 7.01.
Indemnification Respecting Third Party Claims.
(A)
Indemnification of Directors and Officers
. The Corporation, to the fullest extent
permitted and in the manner required, by the laws of the State of Delaware as in effect from time
to time shall indemnify in accordance with the following provisions of this Article any person who
was or is made a party to or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding (including any appeal thereof), whether civil, criminal,
administrative, regulatory or investigative in nature (other than an action by or in the right of
the Corporation), by reason of the fact that such person is or was a director or officer of the
Corporation, or, if at a time when he or she was a director or officer of the Corporation, is or
was serving at the request of, or to represent the interests of, the Corporation as a director,
officer, partner, member, trustee, fiduciary, employee or agent (a Subsidiary Officer) of another
corporation, partnership, joint venture, limited liability company, trust, employee benefit plan or
other enterprise including any charitable or not-for-profit public service organization or trade
association (an Affiliated Entity), against expenses (including attorneys fees and
disbursements), costs, judgments, fines, penalties and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or proceeding if such
person acted in good faith and in a manner such person 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 his or her conduct was unlawful; provided, however, that the
Corporation shall not be obligated to indemnify against any amount paid in settlement unless the
Corporation has consented to such settlement. The termination of any action, suit or proceeding by
judgment, order, settlement or conviction or upon a plea of nolo contendere or its equivalent shall
not, of itself, create a presumption that the person did not act in good faith and in a manner
which such person reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, that such person had
reasonable cause to believe that his or her conduct was unlawful. Notwithstanding anything to the
contrary in the foregoing provisions of this paragraph, a person shall not be entitled, as a matter
of right, to indemnification pursuant to this paragraph against costs or expenses incurred in
connection with any action, suit or proceeding commenced by such person against the Corporation or
any Affiliated Entity or any person who is or was a director, officer, partner, member, fiduciary,
employee or agent of the Corporation or a Subsidiary Officer of any Affiliated Entity in their
capacity as such, but such indemnification may be provided by the Corporation in a specific case as
permitted by Section 7.06 of this Article.
(B)
Indemnification of Employees and Agents
. The Corporation may indemnify any employee or
agent of the Corporation in the manner and to the same or a lesser extent that it shall indemnify
any director or officer under paragraph (A) above in this Section 7.01.
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Section 7.02.
Indemnification Respecting Derivative Claims.
(A)
Indemnification of Directors and Officers
. The Corporation, to the fullest extent
permitted and in the manner required, by the laws of the State of Delaware as in effect from time
to time shall indemnify, in accordance with the following provisions of this Article, any person
who was or is made a party to or is threatened to be made a party to any threatened, pending or
completed action or suit (including any appeal thereof) brought by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that such person is or was a
director or officer of the Corporation, or, if at a time when he or she was a director or officer
of the Corporation, is or was serving at the request of, or to represent the interests of, the
Corporation as a Subsidiary Officer of an Affiliated Entity against expenses (including attorneys
fees and disbursements) and costs actually and reasonably incurred by such person in connection
with such action or suit if such person acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interests of the Corporation, except that no
indemnification shall be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the Corporation unless, and only to the extent that, the
Court of Chancery of the State of Delaware or the court in which such judgment was rendered shall
determine upon application that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to indemnity for such
expenses and costs as the Court of Chancery of the State of Delaware or such other court shall deem
proper. Notwithstanding anything to the contrary in the foregoing provisions of this paragraph, a
person shall not be entitled, as a matter of right, to indemnification pursuant to this paragraph
against costs and expenses incurred in connection with any action or suit in the right of the
Corporation commenced by such Person, but such indemnification may be provided by the Corporation
in any specific case as permitted by Section 7.06 of this Article.
(B)
Indemnification of Employees and Agents
. The Corporation may indemnify any employee or
agent of the Corporation in the manner and to the same or a lesser extent that it shall indemnify
any director or officer under paragraph (A) above in this Section 7.02.
Section 7.03.
Determination of Entitlement to Indemnification
. Any indemnification to be
provided under Section 7.01 or 7.02 of this Article (unless ordered by a court of competent
jurisdiction) shall be made by the Corporation only as authorized in the specific case upon a
determination that indemnification is proper under the circumstances because such person has met
the applicable standard of conduct set forth in such paragraph. Such determination shall be made in
accordance with any applicable procedures authorized by the Board of Directors and in accordance
with the DGCL. In the event a request for indemnification is made by any person referred to in
paragraph (a) of Section 7.01 or 7.02 of this Article, the Corporation shall use its best efforts
to cause such determination to be made not later than 90 days after such request is made.
Section 7.04.
Right to Indemnification in Certain Circumstances.
(A)
Indemnification of Successful Party
. Notwithstanding the other provisions of this
Article, to the extent that a director or officer of the Corporation has been successful on the
merits or otherwise in defense of any action, suit or proceeding referred to in any of paragraphs
(A) or (B) of Section 7.01 or 7.02 of this Article, in defense of any claim, issue or matter
therein, or in any action, suit or proceeding brought by the director or officer to enforce rights
to indemnification or advancement of expenses and costs granted pursuant to this Article, such
person shall be indemnified against expenses (including attorneys fees and disbursements) and
costs actually and reasonably incurred by such person in connection therewith.
(B)
Indemnification for Service As a Witness
. To the extent any person who is or was a
director or officer of the Corporation has served or prepared to serve as a witness in any action,
suit or proceeding (whether civil, criminal, administrative, regulatory or investigative in
nature), including any investigation by any legislative body or any regulatory or self-regulatory
body by which the Corporations business is regulated, by reason of his or her services as a
director or officer of the Corporation or his or her service as a Subsidiary Officer of an
Affiliated Entity at a time when he or she was a director or officer of the Corporation (assuming
such person is or was serving at the request of, or to represent the interests of, the Corporation
as a Subsidiary Officer of such Affiliated Entity) but excluding service as a witness in an action
or suit commenced by such person (unless such expenses were incurred with the approval of the Board
of Directors, a committee thereof or the Chairman, a Vice Chairman or the Chief Executive Officer
of the Corporation), the Corporation shall indemnify such person against out-of-pocket costs and
expenses (including attorneys fees and disbursements) actually and reasonably incurred by such
person in
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connection therewith and shall use its best efforts to provide such indemnity within 45 days
after receipt by the Corporation from such person of a statement requesting such indemnification,
averring such service and reasonably evidencing such expenses and costs; it being understood,
however, that the Corporation shall have no obligation under this Article to compensate such person
for such persons time or efforts so expended. The Corporation may indemnify any employee or agent
of the Corporation to the same or a lesser extent as it may indemnify any director or officer of
the Corporation pursuant to the foregoing sentence of this paragraph.
Section 7.05.
Advances of Expenses.
(A)
Advances to Directors and Officers
. To the fullest extent not prohibited by applicable
law, expenses and costs, incurred by any person referred to in paragraph (a) of Section 7.01 or
7.02 of this Article in defending a civil, criminal, administrative, regulatory or investigative
action, suit or proceeding shall be paid by the Corporation in advance of the final disposition of
such action, suit or proceeding upon receipt of an undertaking in writing 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 in respect of such costs and expenses by the Corporation as authorized by this
Article.
(B)
Advances to Employees and Agents
. To the fullest extent not prohibited by applicable law,
expenses and costs incurred by any person referred to in paragraph (B) of Section 7.01 or 7.02 of
this Article in defending a civil, criminal, administrative, regulatory 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, a committee thereof or an
officer of the Corporation authorized to so act by the Board of Directors upon receipt of an
undertaking in writing 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 in respect of
such costs and expenses as authorized by this Article.
Section 7.06.
Indemnification Not Exclusive
. The provision of indemnification to or the
advancement of expenses and costs to any person under this Article, or the entitlement of any
person to indemnification or advancement of expenses and costs under this Article, shall not limit
or restrict in any way the power of the Corporation to indemnify or advance expenses and costs to
such person in any other way permitted by law or be deemed exclusive of, or invalidate, any right
to which any person seeking indemnification or advancement of expenses and costs may be entitled
under any law, agreement, vote of stockholders or disinterested directors or otherwise, both as to
action in such persons capacity as an officer, director, employee or agent of the Corporation and
as to action in any other capacity.
Section 7.07.
Corporate Obligations; Reliance
. The rights granted pursuant to this Article
shall vest at the time a person becomes a director or officer of the Corporation and shall be
deemed to create a binding contractual obligation on the part of the Corporation to directors and
officers of the Corporation, and such persons in acting in their capacities as officers or
directors of the Corporation or Subsidiary Officers of any Affiliated Entity shall be entitled to
rely on such provisions of this Article, without giving notice thereof to the Corporation.
Section 7.08.
Accrual of Claims; Successors
. The indemnification and advancement of expenses
and costs provided or permitted under the foregoing provisions of this Article shall or may, as the
case may be, apply in respect of any expense, cost, judgment, fine, penalty or amount paid in
settlement, whether or not the claim or cause of action in respect thereof accrued or arose before
or after the effective date of such provisions of this Article. The right of any person who is or
was a director, officer, employee or agent of the Corporation to indemnification or advancement of
expenses and costs as provided under the foregoing provisions of this Article shall continue after
he or she shall have ceased to be a director, officer, employee or agent and shall inure to the
benefit of the heirs, distributees, executors, administrators and other legal representatives of
such person. Any repeal or modification of the provisions of this Article shall be prospective only
and shall not adversely affect the rights of any person who is or was a director, officer, employee
or agent of the Corporation hereunder at the time of any act or omission occurring prior to such
repeal or modification.
Section 7.09.
Insurance
. The Corporation may 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, or to represent the interests of, the Corporation as a Subsidiary
Officer of any Affiliated Entity, against any liability asserted against such person and incurred
by such person in any such capacity, or arising out of such persons status
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as such, whether or not the Corporation would have the power to indemnify such person against
such liability under the provisions of this Article or applicable law.
Section 7.10.
Definitions of Certain Terms
. For purposes of this Article: (i) references to
the Corporation shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed into the Corporation in a
consolidation or merger if such corporation would have been permitted (if its corporate existence
had continued) under applicable law to indemnify its directors, officers, employees or agents, so
that any person who is or was a director, officer, employee or agent of such constituent
corporation, or is or was serving at the request, or to represent the interests of, such
constituent corporation as a director, officer, employee or agent of any Affiliated Entity shall
stand in the same position under the provisions of this Article with respect to the resulting or
surviving corporation as such person would have with respect to such constituent corporation if its
separate existence had continued; (ii) references to fines shall include any excise taxes
assessed on a person with respect to an employee benefit plan; (iii) references to serving at the
request of the Corporation shall include any service as a director, officer, partner, member,
trustee, fiduciary, employee or agent of the Corporation or any Affiliated Entity which service
imposes duties on, or involves services by, such director, officer, partner, member, trustee,
fiduciary, employee or agent with respect to an employee benefit plan, its participants, or
beneficiaries; and (iv) a person who acted in good faith and in a manner such person reasonably
believed to be in the interest of the participants and beneficiaries of an employee benefit plan
shall be deemed to have acted in a manner not opposed to the best interest of the Corporation as
referred to in this Article.
ARTICLE VIII
MISCELLANEOUS
Section 8.01.
Electronic Transmission
. For purposes of these By-laws, 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 8.02.
Corporate Seal
. The Board of Directors may provide a suitable seal, containing
the name of the Corporation, which seal shall be in charge of the Secretary. If and when so
directed by the Board of Directors or a committee thereof, duplicates of the seal may be kept and
used by the Treasurer or by an Assistant Secretary or Assistant Treasurer.
Section 8.03.
Fiscal Year
. The fiscal year of the Corporation shall end on December 31 of
each year, or such other twelve consecutive months as the Board of Directors may designate.
Section 8.04.
Section Headings
. Section headings in these By-laws are for convenience of
reference only and shall not be given any substantive effect in limiting or otherwise construing
any provision herein.
Section 8.05.
Inconsistent Provisions
. In the event that any provision of these By-laws is
or becomes inconsistent with any provision of the Certificate of Incorporation, the DGCL or any
other applicable law, the provision of these By-laws shall not be given any effect to the extent of
such inconsistency but shall otherwise be given full force and effect.
ARTICLE IX
AMENDMENTS
Section 9.01.
Amendments
. Subject to the Certificate of Incorporation these By-laws may be
amended, added to, rescinded or repealed at any meeting of the Board of Directors or of the
stockholders; provided, however, that, notwithstanding any other provisions of these By-laws or any
provision of law which might otherwise permit a lesser vote of the stockholders, the affirmative
vote of the holders of at least 80% in voting power of all shares of the Corporation entitled to
vote generally in the election of directors, voting together as a single class, shall be required
in order for the stockholders to alter, amend or repeal Sections 2.02, 2.03, 3.02, 3.03, 3.04, 3.05
or this proviso of Section 9.01 of the By-laws or to adopt provisions inconsistent therewith.
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