Midwest Banc Holdings, Inc. Amended and Restated By-Laws Article I Offices and Registered Agent

 

Exhibit 3.2

MIDWEST BANC HOLDINGS, INC.
AMENDED AND RESTATED BY-LAWS

ARTICLE I

OFFICES AND REGISTERED AGENT

     Section 1.1. Registered Office and Agent. Midwest Banc Holdings, Inc. (the“Corporation”) shall have and continuously maintain a registered office in the City of Wilmington,County of New Castle, State of Delaware, and a registered agent having a business office identicalwith such registered office.

     Section 1.2. Corporation’s Principal Office in Illinois. The Corporation’s principaloffice in Illinois is located at Midwest Centre, 501 West North Avenue, Melrose Park, IL 60160.

     Section 1.3. Other Offices. The Corporation may also have such other office oroffices both in and outside of Delaware as the Board of Directors may determine or as the businessof the Corporation may require.

ARTICLE II

STOCKHOLDERS

     Section 2.1. Annual Meeting. The annual meeting of stockholders for the election ofdirectors to succeed those whose terms have expired and for the transaction of such other businessas may properly come before the meeting shall be held in each year at such time and date as theBoard of Directors, by resolution, shall determine and as stated in the notice of the meeting. Inthe event the Board of Directors fails to so determine the time and date of meeting, the annualmeeting of stockholders shall be held on the first Wednesday of May of each year at the hour of2:00 p.m. If the day fixed for the annual meeting shall be a legal holiday, such meeting shall beheld on the next succeeding business day. If the directors shall not be elected at the annualmeeting, or at any adjournment thereof, the Board of Directors shall cause the election to be heldas soon thereafter as may be convenient.

     Section 2.2. Special Meetings. Special meetings of the stockholders may be called atany time by the Chairman or the President, and shall be called by the President or Secretary at therequest, in writing, of a majority of the Board of Directors. Such request shall state the purposeor purposes of the proposed meeting.

     Section 2.3. Place of Meetings. Meetings of stockholders, whether annual or special,shall be held at such time and place as may be determined by the Board of Directors and designatedin the notice or waiver of notice of such meeting; provided, that a waiver of notice signed by allstockholders may designate any time or any place as the time and place for the holding of suchmeeting. If no designation is made, the place of meeting shall be the principal office of theCorporation in Illinois.

 


 

     Section 2.4. Notice of Meetings. Except as otherwise required by law, written orprinted notice stating the place, date and hour of the meeting, the means of remote communications,if any, by which stockholders and proxy holders may be deemed to be present in person and entitledto vote at the meeting as provided in Section 211 of the Delaware General Corporation Law, asamended from time to time (the “DGCL”), and the general nature of the business to be considered,shall be given to each stockholder entitled to vote thereat at his address as it appears on therecords of the Corporation, or by a single written notice to such stockholders who share a singleaddress as provided in Section 233 of the DGCL. Such notice shall be delivered not less than tennor more than sixty days before the date of the meeting, or in the case of a merger orconsolidation, share exchange, dissolution or sale, lease or exchange of all or substantially allof the assets of the Corporation, other than in the usual and regular course of business, at leasttwenty days before the date of the meeting, either personally or by mail, by or at the direction ofthe Chairman, the President, the Secretary or the persons calling the meeting, to each stockholderof record entitled to vote at such meeting. If mailed, such notice shall be deemed to be deliveredwhen deposited in the United States mail, with postage thereon prepaid, addressed to thestockholder at his address as it appears on the records of the Corporation. Written notice shallbe deemed effective if given by a form of electronic transmission as provided in Section 232 of theDGCL.

     Section 2.5. Fixing of Record Date or Otherwise Determining Stockholders. For thepurpose of determining stockholders entitled to notice of or to vote at any meeting ofstockholders, or stockholders entitled to receive payment of any dividend, or in order to make adetermination of stockholders for any other proper purpose, the Board of Directors may fix inadvance a date as the record date for any such determination of stockholders, such date in any caseto be not more than sixty days and, for a meeting of stockholders, not less than ten days, or inthe case of a merger, consolidation, share exchange, dissolution or sale, lease or exchange of allor substantially all of the assets of the Corporation other than in the usual and regular course ofbusiness, not less than twenty days, immediately preceding such meeting. If no record date isfixed for the determination of stockholders entitled to notice of or to vote at a meeting ofstockholders, the record date for determining stockholders entitled to notice of or to vote at ameeting of stockholders shall be at the close of business on the day next preceding the date onwhich notice is given or if notice is waived, at the close of business on the day next precedingthe day on which the meeting is held. If no record date is fixed for the determination ofstockholders entitled to receive payment of a dividend, the date on which the resolution of theBoard of Directors declaring such dividend is adopted shall be the record date for suchdetermination of stockholders. When a determination of stockholders entitled to vote at anymeeting of stockholders has been made as provided in this Section, such determination shall applyto any adjournment thereof; provided, however, that the Board of Directors may fix a new recorddate for the adjourned meeting.

     Section 2.6. List of Stockholders Entitled to Vote. The officer who has charge of thestock ledger of the Corporation shall prepare and make, at least ten days before every meeting ofstockholders, a complete list of the stockholders entitled to vote at the meeting, arranged inalphabetical order, and showing the address of each stockholder and the number of shares registeredin the name of each stockholder. Such list shall be open to the examination of any stockholder,for any purpose germane to the meeting, for a period of at least ten days prior to the meeting,either in a place within the city where the meeting is to be held, which place shall be

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specified in the notice of the meeting, or, if not so specified, at the place where themeeting is to be held. The list shall also be produced and kept at the time and place of themeeting during the whole time thereof, and may be inspected by any stockholder who is present. Thestock ledger shall be the only evidence as to who are the stockholders entitled to examine thestock ledger, the list of the stockholders, the corporate books, or to vote at any meeting of thestockholders.

     Section 2.7. Quorum and Manner of Acting. Unless otherwise provided by theCertificate of Incorporation or these By-laws, the holders of a majority of the outstanding sharesof the Corporation, entitled to vote on a matter, represented in person or by proxy, shallconstitute a quorum for consideration of such matter at any meeting of stockholders; provided, thatif less than a majority of the outstanding shares entitled to vote on a matter are represented atsaid meeting, the holders of a majority of the shares so represented may adjourn the meeting fromtime to time without further notice other than announcement at the meeting at which the adjournmentis taken of the time and place of the adjourned meeting. At the adjourned meeting the Corporationmay transact any business which might have been transacted at the original meeting. If theadjournment is for more than thirty days, or if after the adjournment a new record date is fixedfor the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder ofrecord entitled to vote at the meeting. If a quorum is present, the affirmative vote of theholders of a majority of the shares represented at the meeting and entitled to vote shall be theact of the stockholders, unless the vote of a greater number or voting by classes is required bythe DGCL, the Certificate of Incorporation or these By-laws. Withdrawal of stockholders from anymeeting shall not cause failure of a duly constituted quorum at that meeting.

     Section 2.8. Voting Shares and Proxies. Each stockholder shall be entitled to onevote for each share of capital stock held by such stockholder, except as otherwise provided in theCertificate of Incorporation or the provisions of these By-Laws. Unless otherwise permitted by lawor the Certificate of Incorporation, all elections of directors shall be by written ballot. TheBoard of Directors in its discretion may require that the vote upon any question before the meetingshall be by ballot. The requirement of a written ballot shall be satisfied by a ballot submittedby electronic transmission as provided in Section 211(e) of the DGCL. Each stockholder entitled tovote shall be entitled to vote in person, or may authorize another person or persons to act for himby proxy executed in writing by such stockholder or by his duly authorized attorney-in-fact, but nosuch proxy shall be voted or acted upon after three years from its date, unless the proxy providesfor a longer period.

     Section 2.9. Inspectors. At any meeting of stockholders, the chairman of the meetingmay, or upon the request of any stockholder shall, appoint one or more persons as inspectors forsuch meeting. Such inspectors shall ascertain and report the number of shares represented at themeeting, based upon the list of stockholders produced at the meeting in accordance with Section 2.6hereof and upon their determination of the validity and effect of proxies, and they shall count allvotes, report the results and do such other acts as are proper to conduct the election and votingwith impartiality and fairness to all the stockholders. Each such report shall be in writing andsigned by at least a majority of the inspectors, the report of a majority being the report of theinspectors, and such reports shall be prima facie evidence of the number of shares represented atthe meeting and the result of a vote of the stockholders.

     Section 2.10. Voting of Shares by Certain Holders. Shares of its own stock belongingto the Corporation, unless held by it in a fiduciary capacity, shall not be counted in determining

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the total number of outstanding shares at any given time. Shares standing in the name ofanother corporation, domestic or foreign, may be voted by such officer, agent or proxy as theby-laws of such corporation may prescribe, or, in the absence of such provision, as the board ofdirectors of such corporation may determine. Persons holding stock in a fiduciary capacity shallbe entitled to vote the shares so held. Persons whose stock is pledged shall be entitled to vote,unless in the transfer by the pledgor on the books of the Corporation he expressly empowered thepledgee to vote thereon, in which case only the pledgee, or his proxy, may represent such stock andvote thereon.

     Section 2.11. Action by Stockholders. Any action required to be taken or which may betaken at a meeting of stockholders must be effected at a duly called annual or special meeting ofthe stockholders of the Corporation, and the power of stockholders to consent in writing, without ameeting, to the taking of any action is specifically denied.

     Section 2.12. Notice of Stockholder Business. At an annual meeting of thestockholders, only such business shall be conducted as shall have been properly brought before themeeting. To be properly brought before the annual meeting of stockholders, business must be (a)specified in the notice of meeting (or any supplement thereto) given by or at the direction of theBoard of Directors, (b) otherwise properly brought before the meeting by or at the direction of theBoard of Directors, or (c) otherwise properly brought before the meeting by a stockholder whocomplies with the procedures set forth in this Section 2.12. For business to be properly broughtbefore an annual meeting of the stockholders by a stockholder, the stockholder must have the legalright and authority to make the proposal for consideration at the meeting and the stockholder musthave given timely notice thereof in writing to the President of the Corporation.

     To be timely, a stockholder’s written notice of intent to make a proposal or proposals must bepersonally delivered to or mailed by United States mail, postage prepaid and received by thePresident of the Corporation at the principal executive offices of the Corporation not less than120 days prior to the meeting; provided however, that in the event that less than 130 days noticeor prior public disclosure of the date of the meeting is given or made to stockholders (whichnotice or public disclosure shall include the date of the annual meeting specified in theseBy-laws, if such By-laws have been filed with the Securities and Exchange Commission and if theannual meeting is held on such date), notice by the stockholder to be timely must be so receivednot later than the close of business on the 10th day following the day on which notice of the dayof the annual meeting was mailed or such public disclosure was made.

     A stockholder’s notice to the President shall set forth as to each item of business thestockholder proposes to bring before the annual meeting (a) a brief description of the businessdesired to be brought before the meeting, and in the case of a nomination for election of director,such nominee’s name and qualifications, and the reasons for conducting business at the meeting, (b)the name and the record address of the stockholder or stockholders proposing such business, (c) thenumber of shares of stock of the Corporation which are beneficially owned by such stockholder orstockholders, and (d) any material interest of the stockholder in such business.

     A stockholder’s notice relating to the nomination of person or persons for election to theBoard of Directors shall also set forth as to each person whom such stockholder proposes tonominate for election or re-election as a director, all information relating to such person that is

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required to be disclosed in solicitations of proxies for election of directors, or isotherwise required, in each case pursuant to Regulation 14A under the Securities Exchange Act of1934, as amended (including such person’s written consent to being named in the proxy statement asa nominee and to serving as a director if elected). At the request of the Board of Directors anyperson nominated by the Board of Directors for election as a director shall furnish to thePresident of the Corporation that information required to be set forth in a stockholder’s notice ofnomination which pertains to the nominee.

     No person shall be eligible for election as a director of the Corporation unless nominated inaccordance with the provisions of this Section 2.12. The chairman of the meeting shall, if thefacts so warrant, determine that a nomination was not made in accordance with such provisions and,if he or she should so determine, he or she shall so declare to the meeting and the defectivenomination shall be disregarded.

     The chairman of the meeting may refuse to acknowledge the proposal of any stockholder not madein compliance with this Section 2.12. Notwithstanding anything in these By-laws to the contrary,no business shall be brought before or conducted at an annual meeting except in accordance with theprocedures set forth in this Section 2.12.

ARTICLE III

DIRECTORS

     Section 3.1. General Powers. The business and affairs of the Corporation shall bemanaged by its Board of Directors except as may be otherwise provided by statute, these By-laws orthe Certificate of Incorporation.

     Section 3.2. Number, Tenure and Qualifications. The number of directors constitutingthe Board of Directors of the Corporation shall be such number, not fewer than three (3) nor morethan twenty (20), as shall be fixed from time to time by resolution of the Board of Directorsadopted by the affirmative vote of at least a majority of all members thereof. Commencing with theannual meeting of stockholders held in 1998, the directors shall be divided into three (3) classes,as nearly equal in number as possible, with the term of office of the first class to expire at the1999 annual meeting of stockholders, the term of office of the second class to expire at the 2000annual meeting of stockholders and the third class expiring at the 2001 annual meeting ofstockholders. At each annual meeting of stockholders following such initial classification,directors elected by the stockholders to succeed those directors whose term expires shall beelected for a term of office to expire at the third succeeding annual meeting of stockholders aftertheir election. In the event of any increase or decrease in the authorized number of directors,(1) each director then serving as such shall nevertheless continue as a director of the class ofwhich he or she is a member until the expiration of his or her current term, or his or her priordeath, retirement, resignation, or removal, and (2) the newly created or eliminated directorshipsresulting from such increase or decrease shall be apportioned by the Board of Directors among thethree classes of directors so as to maintain such classes as nearly equal in number as possible.Each director shall hold office until his successor is elected and qualified or until his earlierresignation or removal. In addition, unless otherwise provided in the resolution electing a personto the office of director, each director of the Corporation shall own, of record or beneficially,at least 3,000 shares of common stock of the Corporation with each

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director acquiring said shares within three years of being elected to the Board of Directors.A majority of the members of the Board of Directors shall be independent which shall be determinedin accordance with the NASD director independence rules.

     Section 3.3. Regular Meetings. A regular meeting of the Board of Directors shall beheld, without other notice than this Section, immediately after and at the same place as the annualmeeting of stockholders. The Board of Directors may provide, by resolution, the time and place,either within or without Delaware, for the holding of additional regular meetings without othernotice than such resolution.

     Section 3.4. Special Meetings. Special meetings of the Board of Directors may becalled at any time by the Chairman, the President or at the written request of any two directors.The person or persons who call a special meeting of the Board of Directors may designate any place,either within or without Delaware, as the place for holding such special meeting. In the absenceof such a designation, the place of meeting shall be the Corporation’s principal place of business.

     Section 3.5. Notice of Special Meetings. Notice stating the place, date and hour of aspecial meeting shall be mailed not less than five days before the date of meeting, or shall besent by telegram or be delivered personally or by telephone not less than two days before the dateof the meeting, to each director by or at the direction of the person or persons calling themeeting. Attendance of a director at any meeting shall constitute a waiver of notice of suchmeeting except where a director attends a meeting for the express purpose of objecting, at thebeginning of the meeting, to the transaction of any business because the meting is not lawfullycalled or convened. Neither the business to be transacted at nor the purpose of any meeting of theBoard of Directors need be specified in the notice or waiver of notice of such meeting.

     Section 3.6. Quorum and Manner of Acting. A majority of the number of directors asfixed in the manner set forth in Section 3.2 hereof shall constitute a quorum for the transactionof business at any meeting of the Board of Directors; provided, that if less than a majority ofsuch number of directors are present at said meeting, a majority of the directors present mayadjourn the meeting from time to time without further notice. The act of the majority of thedirectors present at a meeting at which a quorum is present shall be the act of the Board ofDirectors, unless otherwise provided in the DGCL, the Certificate of Incorporation or theseBy-laws.

     Section 3.7. Informal Action by Directors. Any action which is required by law or bythese By-laws to be taken at a meeting of the Board of Directors, or any other action which may betaken at a meeting of the Board of Directors or any committee thereof, may be taken without ameeting if a consent in writing, setting forth the action to be taken, shall be signed by all ofthe directors entitled to vote with respect to the subject matter thereof, or by all the members ofsuch committee, as the case may be. Such consent shall have the same force and effect as aunanimous vote of all of the directors or all of the members of such committee, as the case may be,at a duly called meeting thereof, and shall be filed with the minutes of proceedings of the Boardor committee.

     Section 3.8. Telephonic Meetings. Unless otherwise restricted by the Certificate ofIncorporation or these By-laws, members of the Board of Directors or of any committee

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designated by such Board, may participate in a meeting of such Board or committee by means ofconference telephone or similar communications equipment by means of which all personsparticipating in the meeting can hear each other, and participation in a meeting pursuant to thisSection shall constitute presence in person at such meeting.

     Section 3.9. Resignations. Any director may resign at any time by giving writtennotice to the Board of Directors, the Chairman, the President, or the Secretary. Such resignationshall take effect at the time specified therein; and, unless tendered to take effect uponacceptance thereof, the acceptance of such resignation shall not be necessary to make it effective.

     Section 3.10. Vacancies and Newly-Created Directorships. Subject to the rights of theholders of any class or series of preferred stock, and unless the Board of Directors otherwisedetermines, newly created directorships resulting from any increase in the authorized number ofdirectors or any vacancies in the Board of Directors resulting from death, resignation, retirement,disqualification, removal from office or other cause may be filled only by a majority vote of thedirectors then in office, though less than a quorum, or by a sole remaining director, and directorsso chosen shall hold office for a term expiring at the annual meeting of stockholders at which theterm of office of the class to which they have been elected expires and until such director’ssuccessor shall have been duly elected and qualified or until his earlier resignation or removal.No decrease in the number of authorized directors constituting the Board shall shorten the term ofany incumbent director.

     Section 3.11. Chairman of the Board. The Board of Directors shall elect one of itsmembers to be the Chairman of the Board of Directors. The Chairman of the Board of Directors shalllead the Board of Directors in fulfilling its responsibilities as set forth in these By-Laws andperform all other duties and exercise all other powers which are or from time to time may bedelegated to the Chairman by the Board of Directors.

     Section 3.12. Removal. Any director or the entire Board of Directors may be removed,with or without cause, by the holders of a majority of the shares then entitled to vote at anelection of directors, unless otherwise required by the provisions of the Certificate ofIncorporation or the DGCL.

     Section 3.13. Interested Directors.

     (a) No contract or transaction between the Corporation and one or more of its directors orofficers, or between the Corporation and any other corporation, partnership, association, or otherorganization in which one or more of its directors or officers are directors or officers, or have afinancial interest, shall be void or voidable solely for this reason, or solely because thedirector or officer is present at or participates in the meeting of the Board or committee thereofwhich authorizes the contract or transaction, or solely because his or their votes are counted forsuch purpose, if:

     (1) The material facts as to his relationship or interest and as to thecontract or transaction are disclosed or are known to the Board of Directors or thecommittee, and the Board or committee in good faith authorizes the contract ortransaction by the affirmative votes of a majority of the disinterested directors,even though the disinterested directors be less than quorum; or

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     (2) The material facts as to his relationship or interest and as to thecontract or transaction are disclosed or are known to the stockholders entitled tovote thereon, and the contract or transaction is specifically approved in good faithby vote of the stockholders; or

     (3) The contract or transaction is fair as to the Corporation as of the time itis authorized, approved or ratified, by the Board of Directors, a committee thereof,or the stockholders.

     (b) Common or interested directors may be counted in determining the presence of a quorum at ameeting of the Board of Directors or of a committee which authorizes the contract or transaction.

     Section 3.14. Director Compensation. Unless otherwise restricted by the Certificateof Incorporation or these By-laws, the Board of Directors shall have the authority to fix thecompensation of directors. The directors may be paid their expenses, if any, of attendance at eachmeeting of the Board of Directors and may be paid a fixed sum for attendance at each meeting of theBoard of Directors or a stated salary as director. No such payment shall preclude any directorfrom serving the corporation in any other capacity and receiving compensation therefor. Members ofspecial or standing committees may be allowed like compensation for attending committee meetings.

ARTICLE IV

COMMITTEES

     Section 4.1. Appointment and Powers. The Board of Directors may, by resolution passedby a majority of the whole Board, designate one or more committees, each committee to consist ofone or more of the directors of the Corporation which, to the extent provided in said resolution orin these By-laws, shall have and may exercise all the powers and authority of the Board ofDirectors in the management of the business and affairs of the Corporation, and may authorize theseal of the Corporation to be affixed to all papers which may require it; but no such committeeshall have the power or authority in reference to amending the Certificate of Incorporation (exceptthat any such committee may, to the extent authorized in the resolution or resolutions providingfor the issuance of shares of stock adopted by the Board of Directors, fix the designations and anyof the preferences or rights of such shares relating to dividends, redemption, dissolution, anydistribution of assets of the Corporation or the conversion into, or the exchange of such sharesfor, shares of any other class or classes of stock of the Corporation or fix the number of sharesof any series of stock or authorize the increase or decrease of the shares of any series), adoptingan agreement of merger or consolidation, recommending to the stockholders the sale, lease orexchange of all or substantially all of the Corporation’s property and assets, recommending to thestockholders a dissolution of the Corporation or a revocation thereof, or amending the By-laws;and, unless the resolution, By-laws or Certificate of Incorporation expressly so provides, no suchcommittee shall have the power or authority to declare a dividend, to authorize the issuance ofstock, or to adopt a certificate of ownership and merger pursuant to Section 253 of the DelawareGeneral Corporation Law.

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     Section 4.2. Absence or Disqualification of Committee Member. In the absence ordisqualification of any member of such committee, the member or members thereof present at anymeeting and not disqualified from voting, whether or not they constitute a quorum, may unanimouslyappoint another member of the Board of Directors to act at the meeting in place of any such absentor disqualified member.

     Section 4.3. Record of Proceedings. The committees shall keep regular minutes oftheir proceedings and when required by the Board of Directors shall report the same to the Board ofDirectors.

     Section 4.4. Audit, Compensation and Corporate Governance and Nominating Committees.In addition to any other committees that may be established by the Board of Directors, the Board ofDirectors shall have an Audit Committee, Compensation Committee and Corporate Governance andNominating Committee. All of the members of each such committee shall be independent which shallbe determined in accordance with the NASD director independence rules (subject to the exceptionscontained in such rules); provided further that all of the members of the Audit Committee shallalso be independent as required by the rules and regulations of the Securities and ExchangeCommission governing the independence of audit committee members (subject to the exceptionscontained in such rules).

ARTICLE V

OFFICERS

     Section 5.1. Number and Titles. The officers of the Corporation shall be a President,one or more Vice Presidents (the number thereof to be determined by the Board of Directors), aTreasurer and a Secretary. There shall be such other officers and assistant officers as the Boardof Directors may from time to time deem necessary. Any two or more offices may be held by the sameperson unless the Certificate of Incorporation or these By-laws otherwise provide.

     Section 5.2. Election, Term of Office and Qualifications. The officers shall beelected annually by the Board of Directors at the first meeting of the Board of Directors heldafter the annual meeting of stockholders. If the election of officers is not held at such meeting,such election shall be held as soon thereafter as may be convenient. Vacancies may be filled ornew offices created and filled at any meeting of the Board of Directors. Each officer shall beelected to hold office until his successor shall have been elected and qualified, or until hisearlier death, resignation or removal. Election of an officer shall not of itself create contractrights.

     Section 5.3. Removal. Any officer may be removed by the Board of Directors wheneverin its judgment the best interests of the Corporation will be served thereby, but such removalshall be without prejudice to the contract rights, if any, of the person so removed.

     Section 5.4. Resignation. Any officer may resign at any time by giving written noticeto the Board of Directors, the President or the Secretary. Such resignation shall take effect atthe time specified therein; and, unless tendered to take effect upon acceptance thereof, theacceptance of such resignation shall not be necessary to make it effective.

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     Section 5.5. Duties. In addition to and to the extent not inconsistent with theprovisions of these By-laws, the officers shall have such authority, be subject to suchrestrictions, and perform such duties in the management of the business, property and affairs ofthe Corporation as may be determined from time to time by the Board of Directors.

     Section 5.6. President. The President shall be the chief executive officer of theCorporation. Subject to the control of the Board of Directors, he shall in general supervise thebusiness and affairs of the Corporation and he shall see that resolutions and directions of theBoard of Directors are carried into effect except when that responsibility is specifically assignedto some other person by the Board of Directors. Unless there is a Chairman of the Board who ispresent and who has the duty to preside, the President shall preside at all meetings of thestockholders and, if a director, at all meetings of the Board of Directors. Except in thoseinstances in which the authority to execute is expressly delegated to another officer or agent ofthe Corporation or a different mode of execution is expressly prescribed by the Board of Directorsor these By-laws or where otherwise required by law, the President may execute for the Corporationany contracts, deeds, mortgages, bonds or other instruments which the Board of Directors hasauthorized to be executed or the execution of which is in the ordinary course of the Corporation’sbusiness, and he may accomplish such execution either under or without the seal of the Corporationand either individually or with the Secretary, any Assistant Secretary, or any other officerthereunto authorized by the Board of Directors or these By-laws. In general, he shall perform allduties incident to the office of President and such other duties as from time to time may beprescribed by the Board of Directors.

     Section 5.7. Vice Presidents. In the absence of the President or in the event of hisinability or refusal to act, the Vice President (or in the event there is more than one VicePresident, the Vice President designated Executive Vice President by the Board of Directors andthereafter, or in the absence of such designation, the Vice Presidents in the order otherwisedesignated by the Board of Directors, or in the absence of such other designation, in the order oftheir election) shall perform the duties of the President, and when so acting, shall have all theauthority of and be subject to all the restrictions upon the President. Except in those instancesin which the authority to execute is expressly delegated to another officer or agent of theCorporation or a different mode of execution is expressly prescribed by the Board of Directors orthese By-laws or where otherwise required by law, the Vice President (or each of them if there aremore than one) may execute for the Corporation any contracts, deeds, mortgages, bonds or otherinstruments which the Board of Directors has authorized to be executed, and he may accomplish suchexecution either under or without the seal of the Corporation and either individually or with theSecretary, any Assistant Secretary, or any other officer thereunto authorized by the Board ofDirectors or these By-laws. The Vice Presidents shall perform such other duties as from time totime may be prescribed by the President or the Board of Directors.

     Section 5.8. Treasurer. The Treasurer shall be the principal financial and accountingofficer of the Corporation, and shall (a) have charge and custody of, and be responsible for, allfunds and securities of the Corporation; (b) keep or cause to be kept correct and complete booksand records of account including a record of all receipts and disbursements; (c) deposit all fundsand securities of the Corporation in such banks, trust companies or other depositaries as shall beselected in accordance with these By-laws; (d) from time to time prepare or cause to be preparedand render financial statements of the Corporation at the request of the President or the Board of

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Directors; and (e) in general, perform all duties incident to the office of Treasurer and suchother duties as from time to time may be prescribed by the President or the Board of Directors. Ifrequired by the Board of Directors, the Treasurer shall give a bond for the faithful discharge ofhis duties in such sum and with such surety or sureties as the Board of Directors shall determine.

     Section 5.9. Secretary. The Secretary shall (or shall designate another officer whounder the Secretary’s direction shall) (a) keep the minutes of the proceedings of the stockholdersand of the Board of Directors in one or more books provided for that purpose; (b) see that allnotices are duly given in accordance with the provisions of these By-laws or as required by law;(c) be custodian of the corporate records and of the seal of the Corporation and see that the sealof the Corporation is affixed to all stock certificates prior to the issuance thereof and to alldocuments the execution of which on behalf of the Corporation under its seal is necessary orappropriate; (d) keep or cause to be kept a register of the name and address of each stockholder,which shall be furnished to the Corporation by each such stockholder, and the number and class ofshares held by each stockholder; (e) have general charge of the stock transfer books; and (f) ingeneral, perform all duties incident to the office of Secretary and such other duties as from timeto time may be prescribed by the President or the Board of Directors.

     Section 5.10. Assistant Treasurer and Assistant Secretaries. In the absence of theTreasurer or Secretary in the event of the inability or refusal of the Treasurer or Secretary toact, the Assistant Treasurer and the Assistant Secretary (or in the event there is more than oneof either, in the order designated by the Board of Directors or in the absence of such designation,in the order of their election) shall perform the duties of the Treasurer and Secretary,respectively, and when so acting, shall have all the authority of and be subject to all therestrictions upon such office. The Assistant Treasurers and Assistant Secretaries shall alsoperform such duties as from time to time may be prescribed by the Treasurer or the Secretary,respectively, or by the President or the Board of Directors.

     Section 5.11. Salaries. The salaries and additional compensation, if any, of theofficers shall be determined from time to time by the Board of Directors; provided, that if suchofficers are also directors, such determination shall be made by a majority of the disinteresteddirectors then in office.

ARTICLE VI

CERTIFICATES OF STOCK AND THEIR TRANSFER

     Section 6.1. Shares Represented by Certificates and Uncertificated Shares. Shareseither shall be represented by certificates or shall be uncertificated.

          (a) Certificates representing shares of the Corporation shall be in such form as determined bythe Board of Directors and shall be signed by, or in the name of the Corporation by the Presidentor a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or anAssistant Secretary of the Corporation. Any of or all of the signatures on the certificates may bea facsimile. All certificates or stock shall bear the seal of the Corporation, which seal may be afacsimile, engraved or printed.

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          (b) Unless prohibited by the Certificate of Incorporation, the Board of Directors may provideby resolution that some or all of any class or series of shares shall be uncertificated shares.Notwithstanding the adoption of such resolution by the Board of Directors, each holder ofuncertificated shares, upon request to the Corporation, shall be entitled to receive a certificatesigned by, or in the name of the Corporation as described in Section 6.1(a). Except as otherwiseexpressly provided by law, the rights and obligations of the holders of uncertificated shares shallbe identical to those of the holders of certificates representing shares of the same class andseries.

     Section 6.2. Transfer of Shares.

          (a) Provided (i) the Corporation has no duty to inquire into adverse claims or has dischargedany such duty, (ii) any applicable law relating to the payment or taxes has been complied with and(iii) the transfer is in fact rightful and to a bona fide purchaser, the Corporation shall have aduty to register any transfer of shares in the stock transfer books of the Corporation if thefollowing conditions are met:

     (1) For transfer of shares represented by a certificate, there shall have beenpresented to the Corporation or its transfer agent (i) the stock certificateendorsed by the appropriate person or persons and (ii) reasonable assurance thatsuch endorsement is genuine and effective. Upon registration of such transfer inthe stock transfer books of the Corporation, the certificatesrepresenting the shares transferred shall be cancelled and the new record holder, upon request, shallbe entitled to receive a new certificate or certificates. No new share certificatesshall be issued until the former certificate or certificates have been surrenderedand cancelled, except that in the case of a lost, destroyed, wrongfully taken ormutilated certificate, a new one may be issued therefor upon such terms andindemnity to the Corporation as the Board of Directors or the President mayprescribe consistent with applicable law.

     (2) For transfer of uncertificated shares, the Corporation or its transferagent shall have received (i) an instruction (in writing or by a communication insuch other form as may be agreed upon in writing by the Corporation) from theregistered owner or other appropriate person to effect such transfer and (ii)reasonable assurance that such instruction is genuine and effective.

          (b) The terms and conditions described in the foregoing provisions of this Section shall beconstrued in accordance with the provisions of the Delaware Uniform Commercial Code, except asotherwise provided by the Delaware General Corporation Law.

     Section 6.3. Registered Stockholders. The Corporation shall be entitled to recognizethe exclusive right of a person registered on its books as the owner of shares to receivedividends, and to vote as such owner, and to hold liable for calls and assessments a personregistered on its books as the owner of shares, and shall not be bound to recognize any equitableor other claim to or interest in such share or shares on the part of any other person, whether ornot it shall have express or other notice thereof, except as otherwise provided by the DGCL.

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ARTICLE VII

DIVIDENDS

     Section 7.1. Dividends. Subject to the provisions of the DGCL and the Certificate ofIncorporation, the Board of Directors may declare and pay dividends upon the shares of its capitalstock. Dividends may be paid in cash, in property, or in shares of the Corporation’s capitalstock.

ARTICLE VIII

INDEMNIFICATION

     Section 8.1. Indemnification. The Corporation shall indemnify, to the full extentthat it shall have the power under the DGCL to do so and in a manner permitted by such law, anyperson made or threatened to be made a party to any threatened, pending or completed action, suitor proceeding, whether civil, criminal, administrative or investigative, by reason of the fact thathe is or was a director, officer, employee or agent of the Corporation, or is or was serving at therequest of the Corporation as a director, officer, employee or agent of another corporation,partnership, joint venture, trust or other enterprise against liabilities and expenses reasonablyincurred or paid by such person in connection with such action, suit or proceeding. The words“liabilities” and “expenses” shall include, without limitations: liabilities, losses, damages,judgments, fines, penalties, amounts paid in settlement, expenses, attorneys’ fees and costs.Expenses incurred in defending a civil, criminal, administrative, investigative or other action,suit or proceeding may be paid by the Corporation in advance of the final disposition of suchaction, suit or proceeding in accordance with the provisions of Section 145 of the DGCL.

     The indemnification and advancement of expenses provided by this By-law shall not be deemedexclusive of any other rights to which any person indemnified may be entitled under any by-law,statute, agreement, vote of stockholders, or disinterested directors or otherwise, both as toaction in his official capacity and as to action in another capacity while holding such office, andshall continue as to a person who has ceased to be such director, officer, employee or agent andshall inure to the benefit of the heirs, executors and administrators of such person.

     The Corporation may purchase and maintain insurance on behalf of any person referred to in thepreceding paragraph against any liability asserted against him and incurred by him in any suchcapacity, or arising out of his status as such, whether or not the Corporation would have the powerto indemnify him against such liability under the provisions of this By-law or otherwise.

     For purposes of this By-law, reference to “the Corporation” shall include, in addition to theresulting corporation, any constituent corporation (including any constituent of a constituent)absorbed in a consolidation or merger which, if its separate existence had continued, would havehad power and authority to indemnify its directors, officers and employees or agents, so that anyperson who is or was a director, officer, employee or agent of such constituent corporation, or isor was serving at the request of such constituent corporation, as director, officer, employee oragent of another corporation, partnership, joint venture, trust or other enterprise, shall stand inthe same position under the provisions of this By-law with respect to the resulting or surviving

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corporation as he would have with respect to such constituent corporation if its separateexistence had continued.

     The provisions of this By-law shall be deemed to be a contract between the Corporation andeach director, officer, employee and agent who serves in any such capacity at any time while thisBy-law and the relevant provisions of the DGCL, as amended, or other applicable law, if any, are ineffect, and any repeal or modification of any such law or of this By-law shall not affect anyrights or obligations then existing with respect to any state of facts then or theretofore existingor any action, suit or proceeding theretofore or thereafter brought or threatened based in whole orin part upon such state of facts.

     For purposes of this By-law, references to “other enterprises” shall include employee benefitplans; references to “fines” shall include any excise taxes assessed on a person with respect toany employee benefit plan; and references to “serving at the request of the Corporation” shallinclude any service as a director, officer, employee or agent of the Corporation which imposesduties on, or involves services by, such director, officer, employee or agent with respect to anyemployee benefit plan, its participants, or beneficiaries; and a person who acted in good faith andin a manner he reasonably believed to be in the best interest of the participants and beneficiariesof an employee benefit plan shall be deemed to have acted in a manner not opposed to the bestinterests of the Corporation.

ARTICLE IX

FISCAL YEAR

     Section 9.1. Fiscal Year. The fiscal year of the Corporation shall be fixed by theBoard of Directors.

ARTICLE X

SEAL

     Section 10.1. Seal. The corporate seal shall have inscribed thereon the name of theCorporation, the year of its organization and the words “Corporate Seal, Delaware.” The seal maybe used by causing it or a facsimile thereof to be impressed or affixed or in any mannerreproduced.

ARTICLE XI

WAIVER OF NOTICE

     Section 11.1. Waiver of Notice. Whenever any notice is required to be given underthese By-laws, the Certificate of Incorporation or the DGCL, a waiver thereof in writing, signed bythe person or persons entitled to such notice, whether before or after the time stated therein,shall be deemed equivalent to the giving of such notice.

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ARTICLE XII

MISCELLANEOUS PROVISIONS

     Section 12.1. Contracts. The Board of Directors may authorize any officer or agent toenter into any contract or execute and deliver any instrument in the name and on behalf of theCorporation, and the President may so authorize any officer or agent with respect to contracts orinstruments in the usual and regular course of business. Such authority may be general or confinedto specific instances.

     Section 12.2. Loans. No loan shall be contracted on behalf of the Corporation and noevidence of indebtedness shall be issued in its name unless authorized by the Board of Directors.Such authority may be general or confined to specific instances.

     Section 12.3. Checks, Drafts, Etc. All checks, drafts or other orders for payment ofmoney, or notes or other evidences of indebtedness issued in the name of the Corporation shall besigned by such officer or agent as shall from time to time be authorized by the Board of Directors.

     Section 12.4. Deposits. The Board of Directors may select banks, trust companies orother depositaries for the funds of the Corporation.

     Section 12.5. Stock in Other Corporations. Shares of any other corporation or bankwhich may from time to time be held by the Corporation may be represented and voted by thePresident, or by any proxy appointed in writing by the President, or by any other persons thereuntoauthorized by the Board of Directors, at any meeting of stockholders of such corporation or byexecuting written consents with respect to such shares where stockholder action may be taken bywritten consent. Shares represented by certificates standing in the name of the Corporation may beendorsed for sale or transfer in the name of the Corporation by the President, or by any otherofficer thereunto authorized by the Board of Directors. Shares belonging to the Corporation neednot stand in the name of the Corporation, but may be held for the benefit of the Corporation in thename of any nominee designated for such purpose by the Board of Directors.

ARTICLE XIII

AMENDMENT

     Section 13.1. Procedure. These By-laws may be altered, amended, repaired or repealedand new by-laws may be adopted by the Board of Directors.

     Section 13.2. Amendment by Stockholders. Notwithstanding any other provision of theCertificate of Incorporation or these By-laws to the contrary and notwithstanding that a lesserpercentage may be specified by law, in the event these By-laws shall be amended by vote ofstockholders, the affirmative vote of the holders of at least two-thirds (2/3) of the voting powerof the outstanding shares of all classes of stock of the Corporation, voting together as a singleclass, shall be required to amend or repeal or adopt any provision inconsistent with Sections 2.2,2.11, 2.12, 3.2, 3.10 or 13.2 of these By-laws.

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