BRUNSWICK
CORPORATION
BY-LAWS
AS
AMENDED FEBRUARY 4,
20032,
2010
EFFECTIVE APRIL 30,
2003
ARTICLE
I
OFFICES
Section
1. The registered office shall be in the City of Wilmington, County of New
Castle, State of Delaware.
Section
2. The corporation may also have offices in the City of Lake Forest, State of
Illinois, and at such other places as the board of directors may from time to
time determine or the business of the corporation may require.
ARTICLE
II
MEETINGS
OF STOCKHOLDERS
Section
1. Meetings of stockholders may be held at such time and place, if any, within
or without the State of Delaware, as shall be stated in the notice of the
meeting or in a duly executed waiver of notice thereof. The board of directors
may, in its sole discretion, determine that the meeting shall not be held at any
place, but shall be held solely by means of remote communication, subject to
such guidelines and procedures as the board of directors may adopt, as permitted
by applicable law.
Section
2. (a) An annual meeting of stockholders shall be held at such time and on such
day in the month of April or in such other month as the board of directors may
specify by resolution. At the annual meeting the stockholders shall elect
by a plurality vote of those stockholders voting at the meeting, by
ballot, a board of directors and transact such other business as may properly be
brought before the meeting.
(b)
For business to be properly brought before the meeting, it must be: (i)
authorized by the board of directors and specified in the notice, or a
supplemental notice, of the meeting, (ii) otherwise brought before the meeting
by or at the direction of the board of directors or the chairman of the meeting,
or (iii) otherwise properly brought before the meeting by a stockholder. For
business to be properly brought before an annual meeting by a stockholder
(other than the nomination of a person for election as a director, which is
governed by Article III, Section 2 of these by-laws), the stockholder
must have given written notice thereof to the Secretary of the corporation,
delivered or mailed to and received at the principal executive offices of the
corporation not less than ninety days nor more than 120 days prior to the
anniversary date of the immediately preceding annual meeting; provided, however,
that in the event that no annual meeting was held in the previous year or the
annual meeting is called for a date that is not within thirty days from the
anniversary date of the preceding year's annual meeting date, written notice by
a stockholder in order to be timely must be received not later than the close of
business on the tenth day following the day on which the first public disclosure
of the date of the annual meeting was made. Delivery shall be by hand or by
certified or registered mail, return receipt requested. In no event shall the
public disclosure of an adjournment of an annual meeting commence a new time
period for the giving of stockholder's notice as described above. A
stockholder's notice to the Secretary shall set forth as to each item of
business the stockholder proposes to bring before the meeting: (1) a description
of such item and the reasons for conducting such business at the meeting, (2)
the name and address, as they appear on the corporation's records, of the
stockholder proposing such business, (3) a representation that the stockholder
is a holder of record of shares of stock of the corporation entitled to vote
with respect to such business and intends to appear in person or by proxy at the
meeting to move the consideration of such business, (4) the class and number of
shares of stock of the Corporationcorporation
which are owned
beneficially owned
by the stockholder (for purposes of the regulations under Sections 13 and 14 of
the Securities Exchange Act of 1934, as amended), andor
of record by the stockholder (which information shall be updated by such
stockholder as of the record date of the meeting not later than 10 days after
the record date for the meeting), (5) a
description of any agreement, arrangement or understanding with respect to such
business between or among the stockholder and any of its affiliates or
associates, and any others (including their names) acting in concert with any of
the foregoing (which information shall be updated by such stockholder as of the
record date of the meeting not later than 10 days after the record date for the
meeting), (6) whether and the extent to which any hedging or other transaction
or series of transactions has been entered into by or on behalf of, or any other
agreement, arrangement or understanding (including any short position or any
borrowing or lending of shares) has been made, the effect or intent of which is
to mitigate loss to or manage risk or benefit of share price changes for, or to
increase or decrease the voting power of, such stockholder with respect to any
share of stock of the corporation (which information shall be updated by such
stockholder as of the record date of the meeting not later than 10 days after
the record date for the meeting) and (7) any material interest of the
stockholder in such business. No business shall be conducted at any annual
meeting except in accordance with the procedures set forth in this paragraph
(b).
or, with respect to the election of directors, the provisions of Article III,
Section 2. The chairman of the meeting at which any business is proposed
by a stockholder shall, if the facts warrant, determine and declare to the
meeting that such business was not properly brought before the meeting in
accordance with the provisions of this paragraph (b), and, in such event, the
business not properly before the meeting shall not be transacted.
Section
3. Written notice of the annual meeting stating the place, if any, date, hour of
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 such meeting
shall be given not less than ten nor more than sixty days before the date of the
meeting to each stockholder entitled to vote at such meeting. If mailed, such
notice shall be deemed to be given when deposited in the mail, postage prepaid,
directed to the stockholder at such stockholder's address as it appears on the
records of the corporation.
Section
4. Special meetings of the stockholders, for any purpose or purposes, unless
otherwise prescribed by statute or by the certificate of incorporation, may be
called by the Chairman of the Board and shall be called by the
President or Secretary at the request in writing of a majority of the
board of directors. Such request shall state the purpose or purposes of the
proposed meeting.
Section
5. Written notice of a special meeting of stockholders stating the place, if
any, date, hour of meeting, the means of remote communications, if any, by which
stockholders and proxyholders may be deemed to be present in person and vote at
such meeting and the purpose or purposes for which the meeting is called shall
be given not less than ten nor more than sixty days before the date of the
meeting to each stockholder entitled to vote at such meeting. If mailed, such
notice shall be deemed to be given when deposited in the mail, postage prepaid,
directed to the stockholder at such stockholder's address as it appears on the
records of the corporation.
Section
6. Business transacted at any special meeting of stockholders shall be limited
to the purposes stated in the notice.
Section
7. If authorized by the board of directors in accordance with these by-laws and
applicable law, stockholders and proxyholders not physically present at a
meeting of stockholders may, by means of remote communication, (1) participate
in a meeting of stockholders and (2) 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.
Section
8. The Secretary shall prepare, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address and the number
of shares registered in 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: (i) on a reasonably accessible
electronic network, provided that the information required to gain access to
such list is provided with the notice of the meeting, or (ii) during ordinary
business hours, at the principal place of business of the corporation. In the
event that the corporation determines to make the list available on an
electronic network, the corporation may take reasonable steps to ensure that
such information is available only to stockholders of the corporation. If the
meeting is to be held at a place, the list shall also be produced and kept at
the time and place of the meeting during the whole time thereof and may be
inspected by any stockholder who is present. If the meeting is to be held solely
by means of remote communication, the list shall be open to the examination of
any stockholder during the whole time thereof on a reasonably accessible
electronic network, and the information required to access such list shall be
provided with the notice of the meeting. The stock ledger shall be the only
evidence as to who are the stockholders entitled to examine the stock
ledger, the list of stockholders or
the books of the corporation,required
by this section or to vote in person or by proxy at any meeting of
stockholders.
Section
9. AnyThe
Chairman of the Board or, in the Chairman’s absence, such other person as the
Board of Directors shall designate shall preside at any annual or special
meeting of stockholders. Such
presiding person may be
adjournedadjourn
any annual or special meeting of stockholders from time to time to
reconvene at the same or some other place, if any, and notice need not be given
of any such adjourned meeting if the date, time and place, if any, thereof and
the means of remote communication, if any, by which stockholders and
proxyholders may be deemed present in person and vote at such adjourned meeting
are announced at the meeting at which the adjournment is taken. At the adjourned
meeting any business may be transacted which might have been transacted at the
original meeting. If the adjournment is for more than thirty 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 adjourned meeting in accordance with Section 3 or Section 5 of
this Article II as the case may be.
Section
10. The holders of a majority of the shares of the capital stock of the
corporation, issued and outstanding and entitled to vote thereat, present in
person or represented by proxy, shall be requisite and shall constitute a quorum
at all meetings of the stockholders for the transaction of business except as
otherwise provided by statute or by the certificate of incorporation or by these
by-laws. If a quorum is present when a meeting is convened, the subsequent
withdrawal of stockholders, even though less than a quorum remains, shall not
affect the ability of the remaining stockholders lawfully to transact business.
If, however, such quorum shall not be present or represented at any meeting of
the stockholders, the stockholders entitled to vote thereat, present in person
or represented by proxy, shall have power to adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present or represented. At such adjourned meeting at which a quorum
shall be present or represented any business may be transacted which might have
been transacted at the meeting as originally notified.
Section
11. WhenIn
matters other than the election of directors, when a quorum is present or
represented at any meeting, the vote of the holders of a majority of the stock
having voting power present in person or represented by proxy shall decide any
question brought before such meeting,
unless. A
nominee for director shall be elected to the board of directors if the votes
cast for such nominee’s election exceed the votes cast against such nominee’s
election; provided, that if the number of nominees for director as of the
meeting’s record date exceeds the number of directors to be elected at such
meeting, then each director to be elected shall be elected by a plurality of the
votes cast.
Notwithstanding
the foregoing, if the question
to be voted upon is one upon which by express provision of the statutes
or of the certificate of incorporation or of these by-laws, a different vote is
required, in
which case such express provisions shall govern and control the decision
of such question.
Section
12. (a) At any meeting of the stockholders every stockholder having the right to
vote shall be entitled to vote in person. Each stockholder shall have one vote
for each share of stock having voting power, registered in his name on the books
of the corporation. Except where the transfer books of the corporation shall
have been closed or a date shall have been fixed by the board of directors as a
record date for the determination of its stockholders entitled to vote, no share
of stock shall be voted on at any election for directors which shall have been
transferred on the books of the corporation within twenty days next proceedingpreceding
such election of directors.
(b)
Voting at meetings of stockholders need not be by written ballot and need not be
conducted by inspectors of election unless so required by Section 14 of Article
II of these by-laws or so determined by the holders of stock having a majority
of the votes which could be cast by the holders of all outstanding stock
entitled to vote which are present in person or by proxy at such
meeting.
(c)
Stock of the corporation standing in the name of another corporation and
entitled to vote may be voted by such
other corporation’s officer, agent or proxy as the by-laws or other
internal regulations of such other corporation may prescribe or, in the absence
of such provision, as the board of directors or comparable body of such other
corporation may determine.
(d)
Stock of the corporation standing in the name of a deceased person, a minor, an
incompetent or a debtor in a case under Title 11, United States Code, and
entitled to vote may be voted by an administrator, executor, guardian,
conservator, debtor-in-possession or trustee, as the case may be, either in
person or by proxy, without transfer of such shares into the name of the
official or other person so voting.
(e)
A stockholder whose voting stock of the corporation is pledged shall be entitled
to vote such stock unless on the transfer records of the corporation the pledgor
has expressly empowered the pledgee to vote such shares, in which case only the
pledgee, or such pledgee's proxy, may represent such shares and vote
thereon.
(f)
If voting stock is held of record in the names of two or more persons, whether
fiduciaries, members of a partnership, joint tenants, tenants in common, tenants
by the entirety or otherwise, or if two or more persons have the same fiduciary
relationship respecting the same shares, unless the Secretary is given written
notice to the contrary and is furnished with a copy of the instrument or order
appointing them or creating the relationship wherein it is so provided, their
acts with respect to voting shall have the following effect: (i) if only one
votes, such act binds all; (ii) if more than one vote, the act of the majority
so voting binds all; and (iii) if more than one votes, but the vote is evenly
split on any particular matter each faction may vote such
stock proportionally, or any person voting the shares, or a
beneficiary, if any, may apply to the Court of Chancery of the State of Delaware
or such other court as may have jurisdiction to appoint an additional person to
act with the persons so voting the stock, which shall then be voted as
determined by a majority of such persons and the person appointed by the Court.
If the instrument so filed shows that any such tenancy is held in unequal
interests, a majority or even split for the purpose of this subsection shall be
a majority or even split in interest.
(g)
Stock of the corporation belonging to the corporation, or to another corporation
if
a majority of the shares entitled to vote in the election of directors of
whichsuch
other corporation are held by the corporation, shall not
be voted at any meeting of stockholders and shall not be counted in the total
number of outstanding shares for the purpose of determining whether
aneither
be entitled to vote nor be counted for quorum is
presentpurposes.
Nothing in this Section 12(g) shall limit the right of the corporation to vote
shares of stock of the corporation held by it in a fiduciary
capacity.
Section
13. (a) Each stockholder entitled to vote at a meeting of stockholders may
authorize another person or persons to act for such stockholder by proxy filed
with the Secretary before or at the time of the meeting. No such proxy shall be
voted or acted upon after three years from its date, unless the proxy provides
for a longer period. A duly executed proxy shall be irrevocable if it states
that it is irrevocable and if, and only as long as, it is coupled with an
interest sufficient in law to support an irrevocable power. A stockholder may
revoke any proxy which is not irrevocable by attending the meeting and voting in
person or by filing with the Secretary an instrument in writing revoking the
proxy or another duly executed proxy bearing a later date.
(b)
A stockholder may authorize another person or persons to act for such
stockholder as proxy (i) by executing a writing authorizing such person or
persons to act as such, which execution may be accomplished by such stockholder
or such stockholder's authorized officer, director, partner, employee or agent
(or, if the stock is held in a trust or estate, by a trustee, executor or
administrator thereof) signing such writing or causing his or her signature to
be affixed to such writing by any reasonable means, including, but not limited
to, facsimile signature, or (ii) by transmitting or authorizing the transmission
of a telegram, cablegram or other means of electronic transmission (a
"Transmission") to the person who will be the holder of the proxy or to a proxy
solicitation firm, proxy support service organization or like agent duly
authorized by the person who will be the holder of the proxy to receive such
Transmission; provided that any such Transmission must either set forth or be
submitted with information from which it can be determined that such
Transmission was authorized by such stockholder.
(c)
Any inspector or inspectors appointed pursuant to Section 14 of Article II of
these by-laws shall examine Transmissions to determine if they are valid. If no
inspector or inspectors are so appointed, the Secretary or such other person or
persons as shall be appointed from time to time by the board of directors shall
examine Transmissions to determine if they are valid. If it is determined that a
Transmission is valid, the person or persons making that determination shall
specify the information upon which such person or persons relied. Any copy,
facsimile telecommunication or other reliable reproduction of such a writing or
Transmission may be substituted or used in lieu of the original writing or
Transmission for any and all purposes for which the original writing or
Transmission could be used; provided that such copy, facsimile telecommunication
or other reproduction shall be a complete reproduction of the entire original
writing or Transmission.
Section
14. (a) If the corporation has a class of voting stock that is (i) listed on a
national securities exchange, (ii) authorized for quotation on an interdealer
quotation system of a registered national securities association or (iii) held
of record by more than 2,000 stockholders, the board of directors shall, in
advance of any meeting of stockholders, appoint one or more inspectors
(individually an "Inspector," and collectively the "Inspectors") to act at such
meeting and make a written report thereof. The board of directors may designate
one or more persons as alternate Inspectors to replace any Inspector who shall
fail to act. If no Inspector or alternate is able to act at such meeting, the
chairman of the meeting shall appoint one or more other persons to act as
Inspectors. Each Inspector, before entering upon the discharge of his or her
duties, shall take and sign an oath faithfully to execute the duties of
Inspector with strict impartiality and according to the best of his or her
ability.
(b)
The Inspectors shall (i) ascertain the number of shares of stock of the
corporation outstanding and the voting power of each, (ii) determine the number
of shares of stock of the corporation present in person or by proxy at such
meeting and the validity of proxies and ballots, (iii) count all votes and
ballots, (iv) determine and retain for a reasonable period of time a record of
the disposition of any challenges made to any determination by the Inspectors
and (v) certify their determination of the number of such shares present in
person or by proxy at such meeting and their count of all votes and ballots. The
Inspectors may appoint or retain other persons or entities to assist them in the
performance of their duties.
(c)
The date and time of the opening and the closing of the polls for each matter
upon which the stockholders will vote at a meeting shall be announced at such
meeting. No ballots, proxies or votes, nor any revocations thereof or changes
thereto, shall be accepted by the Inspectors after the closing of the polls
unless the Court of Chancery of the State of Delaware upon application by any
stockholder shall determine otherwise.
(d)
In determining the validity and counting of proxies and ballots, the Inspectors
shall be limited to an examination of the proxies, any envelopes submitted with
such proxies, any information referred to in paragraphs (b) and (c) of Section
13 of Article II of these by-laws, ballots and the regular books and records of
the corporation, except that the Inspectors may consider other reliable
information for the limited purpose of reconciling proxies and ballots submitted
by or on behalf of banks, brokers, their nominees or similar persons which
represent more votes than the holder of a proxy is authorized by a stockholder
of record to cast or more votes than such stockholder holds of record. If the
Inspectors consider other reliable information for the limited purpose permitted
herein, the Inspectors, at the time they make their certification pursuant to
paragraph (b) of this Section 14, shall specify the precise information
considered by them, including the person or persons from whom such information
was obtained, when and the means by which such information was obtained and the
basis for the Inspectors' belief that such information is accurate and
reliable.
Section
15. (a) In order that the corporation may determine the stockholders entitled
(i) to notice of or to vote at any meeting of stockholders or any adjournment
thereof, (ii) to receive payment of any dividend or other distribution or
allotment of any rights, (iii) to exercise any rights in respect of any change,
conversion or exchange of stock or (iv) to take, receive or participate in any
other action, the board of directors may fix a record date, which shall not be
earlier than the date upon which the resolution fixing the record date is
adopted by the board of directors and which (1) in the case of a determination
of stockholders entitled to notice of or to vote at any meeting of stockholders
or adjournment thereof, shall, unless otherwise required by law, be not more
than sixty nor less than ten days before the date of such meeting; and (2) in
the case of any other action, shall be not more than sixty days before such
action.
(b)
If no record date is fixed, (i) the record date for determining stockholders
entitled to notice of or to vote at a meeting of stockholders shall be at the
close of business on the day next preceding the day on which notice is given,
or, if notice is waived, at the close of business on the day next preceding the
day on which the meeting is held; and (ii) 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.
(c)
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, but the
board of directors may fix a new record date for the adjourned
meeting.
ARTICLE
III
DIRECTORS
Section
1. The number of directors shall be twelve,
but theten,
or such other number of
directorsas
may, from time to time, be altered
by amendment of these by-laws in accordancedetermined
by the board of directors in a manner consistent with the certificate of
incorporation.
Section
2. Subject to the rights of holders of any class or series of stock having a
preference over the Common
Stockcommon
stock as to dividends or upon liquidation, nominations for the election
of directors may be made by the board of directors or a committee appointed by
the board of directors or by any stockholder entitled to vote in the election of
directors generally. However, any stockholder entitled to vote in the election
of directors generally may nominate one or more persons for election as
directors at a meeting only if written notice of such stockholder's intent to
make such nomination or nominations has been given, either by personal delivery
or by United States mail, postage prepaid, to the Secretary of the corporation
not later than (a) with respect to an election to be held at an annual meeting
of stockholders, not less than ninety days nor more than 120 days prior to the
anniversary date of the immediately preceding annual meeting; provided, however,
that in the event that no annual meeting was held in the previous year or the
annual meeting is called for a date that is not within thirty days from the
anniversary date of the preceding year's annual meeting date, written notice by
the stockholder in order to be timely must be so received not later than the
close of business on the tenth day following the day on which public disclosure
of the date of the annual meeting was made, and (b) with respect to an election
to be held at a special meeting of stockholders for the election of directors,
the close of business on the tenth day following the date on which public
disclosure of such meeting is first given to stockholders. Delivery shall be by
hand, or by certified or registered mail, return receipt requested. In no event
shall the public announcement of an adjournment of any annual or special meeting
commence a new time period for giving of a stockholder notice as described
above. Each such notice shall set forth: (i) the name and address of the
stockholder who intends to make the nomination; (ii) the name, principal
occupation, age, business address and residence address of the person or persons
to be nominated; (iii) the class and number of shares of stock of the
corporation which are owned
beneficially ownedor
of record by the stockholder and each nominee (for
the purposes of the regulations under Sections 13 and 14 of the Securities
Exchange Act of 1934, as amendedwhich
information shall be updated by such stockholder as of the record date of the
meeting not later than 10 days after the record date for the meeting);
(iv) a representation that the stockholder is the holder of record of stock of
the corporation entitled to vote at such meeting and intends to appear in person
or by proxy at the meeting to nominate the person or persons specified in the
notice; (v
(v) whether and the extent to which any hedging or other transaction or series
of transactions has been entered into by or on behalf of, or any other
agreement, arrangement or understanding (including any short position or any
borrowing or lending of shares) has been made, the effect or intent of which is
to mitigate loss to or manage risk or benefit of share price changes for, or to
increase or decrease the voting power of, such stockholder with respect to any
share of stock of the corporation (which information shall be updated by such
stockholder as of the record date of the meeting not later than 10 days after
the record date for the meeting); (vi) a description of all arrangements
or understandings between the stockholder and any
of its affiliates or associates and each nominee and any other person or
persons (naming such person or persons) pursuant to which the nomination or
nominations are to be made by the stockholder;
(vi
(which information shall be updated by such stockholder as of the record date of
the meeting not later than 10 days after the record date for the meeting);
(vii) such other information regarding each nominee proposed by such
stockholder as would be required to be included in a proxy statement filed
pursuant to the proxy rules of the Securities and Exchange Commission had the
nominee been nominated by the board of directors; and (viiviii)
the consent of each nominee to serve as a director of the corporation if so
elected. The presiding officer of the meeting may refuse to acknowledge the
nomination of any person not made in compliance with the foregoing
procedure.
Section
3. The property and business of the corporation shall be managed by its board of
directors, which may exercise all such powers of the corporation and do all such
lawful acts and things as are not by statute or by the certificate of
incorporation or by these by-laws directed or required to be exercised or done
by the stockholders.
MEETINGS
OF THE BOARD OF DIRECTORS
Section
4. The board of directors of the corporation may hold meetings, both regular and
special, either within or without the State of Delaware.
Section
5. The first meeting of each newly elected board shall be held immediately
after, and at the same place, if any, as, the annual meeting of stockholders at
which such board shall have been elected
or at such other time as the board of directors may determine, for the
purpose of electing officers, and for the consideration of any other business
that may properly be brought before the meeting. No notice of such meeting shall
be necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present.
Section
6. Regular meetings of the board of directors shall be held on such dates, not
less often than once each calendar quarter, as may be fixed from time to time by
resolution
of the board of directors. No notice need be given of such regular
meetings,
provided that notice of such resolution has been furnished to each
director. Such meetings shall be held at the Lake Forest office of the
corporation or at such other place as is
stated in the notice of the meetingthe
board of directors may determine. Upon the assent, given either verbally
or in writing, of a majority of the whole board, any regular meeting may be
cancelled, the time changed, or may be held at such other place and time, as a
majority of the whole board may designate, either verbally or in writing, upon
reasonable notice given to each director,
either personally or by mail or by telegram.
Section
7. Special meetings of the board of directors may be called by the Chairman of
the Board, or by the Secretary on the written request of two directors, to be
held either at the Lake Forest office of the corporation or at such other place,
if any, as may be convenient and may be designated by the officerperson
calling the meeting. Reasonable notice of such special meeting shall be given to
each director,
provided, that a majority of the whole board of directors present at a meeting
called by any of said officers, in matters requiring prompt attention by the
board, may hold a valid meeting and transact business without the giving of
notice to each director as above provided.
Section
8. (a) At all meetings of the board the presence of a majority of the whole
board shall be necessary and sufficient to constitute a quorum for the
transaction of business and the act of a majority of the directors present at
any meeting at which there is a quorum shall be the act of the board of
directors, except as may be otherwise specifically provided by statute or by the
certificate of incorporation or by these by-laws. If a quorum shall not be
present at any meeting of the board of directors the directors present thereat
may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
(b)
A director who is directly or indirectly a party to a contract or transaction
with the corporation, or is a director or officer of or has a financial interest
in any other corporation, partnership, association or other organization which
is a party to a contract or transaction with the corporation, may be counted in
determining whether a quorum is present at any meeting of the board of directors
or a committee thereof at which such contract or transaction is considered or
authorized, and such director may participate in such meeting and vote on such
authorization to the extent permitted by applicable law, including Section 144
of the General Corporation Law of the State of Delaware.
COMMITTEES
Section
9. The board of directors may, by resolution passed by a majority of the whole
board of directors, designate one or more committees, each committee to consist
of one or more directors of the corporation
or such higher number as shall be required by the certificate of
incorporation. The board of directors
may designate one or more directors as alternate members of any committee, who
may replace any absent or disqualified member at any meeting of the committee.
In the absence or disqualification of a member of the committee, the member or
members present at any meeting and not disqualified from voting, whether or not
a quorum, may unanimously appoint another member of the board of directors to
act at the meeting in place of any such absent or disqualified member. Any such
committee, to the extent permitted by law and provided in these by-laws or in
the resolution of the board of directors designating such committee, or an
amendment to such resolution, 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.
Section
10. Unless the board of directors otherwise provides, each committee designated
by the board of directors may make, alter and repeal rules for the conduct of
its business. In the absence of such rules each committee shall conduct its
business in the same manner as the board of directors conducts its business
pursuant to this Article III of these by-laws.
ALTERNATE COMMITTEE
MEMBERS
Section 11. The
board of
directors may designate one or more directors as alternate members of any
committee, any of whom may be selected by the chairman of a committee to replace
any absent or disqualified member at any meeting of a committee. In the absence
or disqualification of a member of a committee and of the alternate members of
such committee, the member or members thereof present at any meeting and not
disqualified from voting, whether or not such member or members constitutes a
quorum, may unanimously appoint another member of the board of directors to act
at the meeting in place of any such absent or disqualified
member.
COMPENSATION
OF DIRECTORS
Section
12.11.
Directors shall receive such fees and reimbursement of reasonable expenses as
may be fixed from time to time by resolution of the board. Members of special or
standing committees shall also be allowed such fees and reimbursements for
reasonable expenses in connection with service on such committees as may from
time to time be fixed by resolution of the board. Such fees may be fixed on the
basis of meetings attended or on an annual basis or both and may be payable
currently or deferred.
ACTION BY
WRITTEN CONSENT
Section
13.12.
Any action required or permitted to be taken at any meeting of the board of
directors or of any committee thereof may be taken without a meeting if all
members of the board or committee, as the case may be, consent thereto in
writing (which may be in counterparts) or by electronic transmission, and the
written consent or consents or electronic transmission or transmissions are
filed with the minutes of proceedings of the board of directors or such
committee. Such filing shall be made in paper form if the minutes of the
corporation are maintained in paper form and shall be in electronic form if the
minutes are maintained in electronic form.
ACTION BY
TELEPHONE OR OTHER COMMUNICATIONS EQUIPMENT
Section
14.13.
Directors may participate in a meeting of the board or any committee by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this section shall constitute presence in person at such
meeting.
PRESUMPTION
OF ASSENT
Section
15.14.
Unless otherwise provided by the laws of the State of Delaware, a director who
is present at a meeting of the board of directors or a committee thereof at
which action is taken on any matter shall be presumed to have assented to the
action taken unless his or her dissent shall be entered in the minutes of such
meeting or unless he or she shall file his or her written dissent to such action
with the person acting as Secretary of such meeting before the adjournment
thereof or shall forward such dissent by registered mail to the Secretary
immediately after the adjournment of such meeting. Such right to dissent shall
not apply to a director who voted in favor of such action.
ARTICLE
IV
NOTICES
Section
1. (a) Except as otherwise provided by law, the certificate of incorporation or
these by-laws, whenever notice is required to be given to any stockholder,
director or member of any committee of the board of directors, such notice may
be given by (i) personal delivery, (ii) depositing it, in a sealed envelope, in
the United States mails, first class, postage prepaid, addressed, (iii)
delivering to a company for overnight or second day mail or delivery, (iv)
delivering it to a telegraph company, charges prepaid, for transmission, or
by transmitting it via telecopier, or (v) any other reliable means
permitted by applicable law (including electronic or Internet mail or
transmission) in each case to such stockholder, director or member, either at
the address of such stockholder, director or member as it appears on the records
of the corporation or, in the case of such a director or member, at his or her
business address; and such notice shall be deemed to be given at the time when
it is thus personally delivered, deposited, delivered or transmitted, as the
case may be. Such requirement for notice shall also be deemed satisfied, except
in the case of stockholder meetings, if actual notice is received orally or by
other writing by the person entitled thereto as far in advance of the event with
respect to which notice is being given as the minimum notice period required by
law or these by-laws.
(b)
Without limiting the foregoing, any notice to stockholders given by the
corporation pursuant to these by-laws shall be effective if given by a form of
electronic transmission consented to by the stockholder to whom the notice is
given. Any such consent shall be revocable by the stockholder by written notice
to the corporation and shall also be deemed revoked if (1) the corporation is
unable to deliver by electronic transmission two consecutive notices given by
the corporation in accordance with such consent and (2) such inability becomes
known to the Secretary of the corporation, the transfer agent or other person
responsible for the giving of notice; provided, however, that the inadvertent
failure to treat such inability as a revocation shall not invalidate any meeting
or other action. Notice given by a form of electronic transmission in accordance
with these by-laws shall be deemed given: (i) if by facsimile telecommunication,
when directed to a number at which the stockholder has consented to receive
notice; (ii) if by electronic mail, when directed to an electronic mail address
at which the stockholder has consented to receive notice; (iii) if by a posting
non
an electronic network, together with separate notice to the stockholder of such
specific posting, upon the later of such posting and the giving of such separate
notice; and (iv) if by another form of electronic transmission, when directed to
the stockholder.
Section
2. (a) Whenever notice is required to be given by law, the certificate of
incorporation or these by-laws to any stockholder to whom (i) notice of two
consecutive annual meetings of stockholders and all notices of meetings of
stockholders during the period between such two consecutive annual meetings, or
(ii) all, and at least two, payments (if sent by first class mail) of dividends
or interest on securities of the corporation during a 12-month period, have been
mailed addressed to such stockholder at the address of such stockholder as shown
on the records of the corporation and have been returned undeliverable, the
giving of such notice to such stockholder shall not be required. Any action or
meeting which shall be taken or held without notice to such stockholder shall
have the same force and effect as if such notice had been duly given. If any
such stockholder shall deliver to the corporation a written notice setting forth
the then current address of such stockholder, the requirement that notice be
given to such stockholder shall be reinstated.
(a)
Whenever notice is required to be given by law, the certificate of incorporation
or these by-laws to any person with whom communication is unlawful, the giving
of such notice to such person shall not be required, and there shall be no duty
to apply to any governmental authority or agency for a license or permit to give
such notice to such person. Any action or meeting which shall be taken or held
without notice to any such person with whom communication is unlawful shall have
the same force and effect as if such notice had been duly given.
Section
3. Any written waiver of notice, signed by the person entitled to notice,
whether before or after the time stated therein, shall be deemed equivalent to
notice. Attendance of a person at a meeting shall constitute a waiver of notice
of such meeting, except when the person attends a meeting 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. Neither the
business to be transacted at, nor the purpose of, any regular or special meeting
of the stockholders, directors, or members of a committee or directors need be
specified in any written waiver of notice.
ARTICLE
V
OFFICERS
Section
1. The board of directors shall elect a Chairman of the Board from among its
members. The board of directors shall also elect a Chief Executive Officer,
Secretary and such other officers as the board of directors determines, none of
whom need to be members of the board of directors.
Section
2. The officers of the corporation shall hold office until their successors are
chosen and qualify. Any officer of the corporation may be removed at any time by
the affirmative vote of a majority of the whole board of directors.
Section
3. The officers of the corporation shall have such powers and duties in the
management of the corporation as may be prescribed by the board of directors
and, to the extent not so provided, as generally pertain to their respective
offices, subject to the control of the board of directors. The
board of directors may require any officer, agent or employee to give security
for the faithful performance of his or her duties.
Section
4. The Chief Executive Officer of the corporation shall in general supervise and
control all of the business affairs of the corporation, subject to the direction
of the board of directors. The Chief Executive Officer may execute, in the name
and on behalf of the corporation, any deeds, mortgages, bonds, contracts or
other instruments which the board of directors or a committee thereof has
authorized to be executed, except in cases where the execution shall have been
expressly delegated by the board of directors or a committee thereof to some
other officer or agent of the corporation.
Section
5. In addition to such other duties, if any, as may be assigned to the Secretary
by the board of directors, the Chairman of the Board, or the Chief Executive
Officer, the Secretary shall (i) keep the minutes of proceedings of the
stockholders, the board of directors and any committee of the board of directors
in one or more books provided for that purpose; (ii) see that all notices are
duly given in accordance with the provisions of these by-laws or as required by
law; (iii) be the custodian of the records and seal of the corporation; (iv)
affix or cause to be affixed the seal of the corporation or a facsimile thereof,
and attest the seal by his or her signature, to all certificates for shares of
stock of the corporation and to all other documents the execution of which under
seal is authorized by the board of directors; and (v) unless such duties have
been delegated by the board of directors to a transfer agent of the corporation,
keep or cause to be kept a register of the name and address of each stockholder,
as the same shall be furnished to the Secretary by such stockholder, and have
general charge of the stock transfer records of the corporation.
ARTICLE
VI
INDEMNIFICATION
OF DIRECTORS AND OFFICERS
Section
1. The corporation mayshall
indemnify to the fullest extent that is lawful, any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (including an action by or in the right of the corporation) (a
“proceeding”) by reason of the fact that he is or was a director,
or officer,
employee or agent of the corporation, or is or was a
director or officer of the corporation serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines, taxes, penalties and amounts paid
in settlement actually and reasonably incurred by him in connection with such
action,
suit or proceeding.
Section
2. 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 the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against any liability asserted against him and incurred by him
in any such capacity, or arising out of his status as such, whether or not he
would be entitled to indemnity against the same liability under the provisions
of this article.
Section
3. The corporation may enter into an indemnity agreement with any director,
officer, employee or agent of the corporation, upon terms and conditions that
the board of directors deems appropriate, as long as the provisions of the
agreement are not inconsistent with this article.
Section
4. The corporation mayshall
pay or reimburse the reasonable expenses (including
attorneys’ fees) incurred by
a director or officer of the corporation in defending any proceeding in
advance of its final disposition if
the corporation has received in advanceupon receipt
of an undertaking by the
person receivingor
on behalf of such paymentdirector
or reimbursementofficer
to repay all amounts advanced if it should be ultimately determined that he or
she is not entitled to be indemnified under this Article VI or otherwise. The
corporation may require security for any such undertaking.
Section
5. The rights conferred on any person by this Article VI shall not be exclusive
of any other rights which such person may have or hereafter acquire under any
statute, provision of the certificate of incorporation, these by-laws,
agreement, vote of stockholders or disinterested directors or
otherwise.
Section
6. If a claim for indemnification or payment of expenses under this Article VI
is not paid in full within sixty days after a written claim therefor has been
received by the corporation, the claimant may file suit to recover the unpaid
amount of such claim and, if successful in whole or in part, shall be entitled
to be paid the expense of prosecuting such claim. In any such action the
corporation shall have the burden of proving that the claimant was not entitled
to the requested indemnification or payment of expenses under applicable
law.
Section
7. The corporation's obligation, if any, to indemnify any person who was or is
serving at its request as a director, officer, employee,
partner or agent of another corporation, partnership, joint venture,
trust or other enterprise shall be reduced by any amount such person may
collect as indemnification from such other corporation, partnership, joint
venture,
trust or other enterprise.
Section
8. Any repeal or modification of the foregoing provisions of this Article VI
shall not adversely affect any right or protection hereunder of any person in
respect of any act or omission occurring prior to the time of such repeal or
modification.
ARTICLE
VII
CERTIFICATES
OF STOCK
Section
1. Shares
of the corporation’s stock may be certificated or
uncertificated. Every holder of stock in the corporation shall
be entitled to have a certificate, signed by, or in the name of the corporation
by the Chairman of the Board, the President or a Vice President and the
Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary
of the corporation, certifying the number of shares owned by him in the
corporation. If the corporation shall be authorized to issue more than one class
of stock or more than one series of any class, designations, preferences and
relative, participating, optional and other special rights of each class of
stock or series thereof and the qualifications, limitations or restrictions or
such preferences and rights shall be set forth in full or summarized on the face
or back of theany
certificate which the corporation shall issue to represent such class or series
of stock; provided, however, that, to the full extent allowed by law, in lieu of
the foregoing requirements, there may be set forth on the face or back of theany
certificate which the corporation shall issue to represent such class or series
of stock, a statement that the corporation will furnish without charge to each
stockholder who so requests the designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and rights.
Section
2. If
such certificate is countersigned (1) by a transfer agent, or (2) by a
registrar, any other signature on theAny
or all the signatures on such certificate may be a facsimile. In case any
officer, transfer agent, or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent, or registrar before such certificate is issued, it may
be issued by the corporation with the same effect as if he were such officer,
transfer agent, or registrar at the date of issue.
LOST
CERTIFICATES
Section
3. The board of directors may authorize
the transfer agents and registrars of the corporation to issue and register,
respectively, new certificatesdirect
a new certificate to be issued in place of any certificatescertificate
previously issued by the corporation alleged to have been lost, stolen or
destroyed, andupon
the making of an affidavit of that fact by the person claiming the certificate
of stock to be lost, stolen or destroyed. When authorizing such issue
of a new certificate, the board of directors may, in its discretion and
as a condition precedent to the issuance thereof, may
prescribe such terms and conditions as it deems expedient, and may require such
indemnities as it deems necessary to protect the corporation and said transfer
agents and registrarsrequire
the owner of such lost, stolen or destroyed certificate, or his or her legal
representative, to advertise the same in such a manner as the board of directors
shall require and/or to give the corporation a bond in such sum as it may direct
as indemnity against any claim that may be made against the corporation with
respect to the certificate alleged to have been lost, stolen or
destroyed.
TRANSFERS
OF STOCK
Section
4. Upon surrender to the corporation or the transfer agent of the corporation of
a certificate for shares duly endorsed or accompanied by proper evidence of
succession, assignment or authority to transfer, it shall be the duty of the
corporation to issue a new certificate to the person entitled thereto, cancel
the old certificate and record the transaction upon its books.
REGISTERED
STOCKHOLDERS
Section
5. The corporation shall be entitled to recognize the exclusive right of a
person registered on its books as the owner of shares to receive dividends, and
to vote as such owner, and to hold liable for calls and assessments a person
registered on its books as the owner of shares, and shall not be bound to
recognize any equitable or other claim to or interest in such share or shares on
the party of any other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by the laws of
Delaware.
ARTICLE
VIII
GENERAL
PROVISIONS
DIVIDENDS
Section
1. Dividends upon the capital stock of the corporation, subject to the
provisions of the certificate of incorporation, if any, may be declared by the
board of directors at any regular or special meeting, pursuant to law. Dividends
may be paid in cash, in property, or in shares of the capital stock, subject to
the provisions of the certificate of incorporation.
Section
2. Before payment of any dividend, there may be set aside out of any funds of
the corporation available for dividends such sum or sums as the directors from
time to time, in their absolute discretion, think proper as a reserve or
reserves to meet contingencies, or for equalizing dividends, or for repairing or
maintaining any property of the corporation, or for such other purpose as the
directors shall think conducive to the interest of the corporation, and the
directors may modify or abolish any such reserve in the manner in which it was
created.
Section 3. The board of
directors shall present at each annual meeting and when called for by vote of
the stockholders at any special meeting of the stockholders, a full and clear
statement of the business and condition of the corporation.
CHECKS
Section 4. All checks or
demands for money and notes of the corporation shall be signed by such officer
or officers or such other person or persons as the board of directors may from
time to time designate. The board of directors, in its discretion, may delegate
its responsibilities contained in this section to any officer or officers of the
corporation.
FISCAL
YEAR
Section
5.3.
The fiscal year of the corporation shall begin on the first day of January, and
terminate on the thirty-first day of December, in each year.
SEAL
Section
6.4.
The corporate seal,
if any, shall have inscribed thereon the name of the corporation, the
year of its organization and the words "Incorporated
in Delaware". The seal may be used by causing it or a facsimile thereof
to be impressed or affixed or reproduced or otherwise.
DEFINITIONS
Section
7.5.
(a) 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.
(b)
For purposes of these by-laws, "public disclosure" shall mean disclosure in a
press release reported by the Dow Jones News Service, Associated Press or
comparable national news service, or in a document publicly filed by the
corporation with the Securities and Exchange Commission pursuant to Section 13,
14 or 15(d) of the Securities Exchange Act of 1934, as amended.
ARTICLE
IX
TENNESSEE AUTHORIZED
CORPORATION PROTECTION ACT
Section 1. This
corporation shall be subject to Section 404(a) of the
Tennessee Authorized
Corporation Protection Act.
ARTICLE
X
AMENDMENTS
Section
1. The holders of shares of capital stock of the corporation entitled at the
time to vote for the election of directors shall have the power to adopt, alter,
amend, or repeal the by-laws of the corporation by vote of such percentage of
such shares as is required by the Certificate of Incorporation, or if no
percentage is specified by the Certificate of Incorporation, by vote of not less
than 66-2/3% of such shares. The board of directors shall also have the power to
adopt, alter, amend or repeal the by-laws of the corporation by vote of such
percentage of the entire board as is required by the Certificate of
Incorporation, or if no percentage is specified by the Certificate of
Incorporation, by vote of not less than a majority of the entire
board.