BY-LAWS
OF
BERKSHIRE HATHAWAY INC.
(as amended through April 29, 1991)
SECTION 1
Certification of Incorporation
1.1. The nature of the business or purposes of the corporation
shall be as set forth in its certificate of incorporation.
These by-laws, the powers of the corporation and of its directors
and stockholders, and all matters concerning the management of
the business and conduct of the affairs of the corporation shall
be subject to such provisions in regard thereto, if any, as are
set forth in the certificate of incorporation; and the certificate
of incorporation is hereby made a part of these by-laws. In
these by-laws, references to the certificate of incorporation
mean the provisions of the certificate of incorporation (as that
term is defined in the General Corporation Law of Delaware) of
the corporation as from time to time in effect, and references to
these by-laws or to any requirement or provision of law mean
these by-laws or such requirement or provision of law as from
time to time in effect.
SECTION 2
Offices
2.1. Registered Office. The registered office of the
corporation shall be in the City of Wilmington, County of New
Castle, Delaware.
2.2. Other Offices. The corporation may also have an
office or offices at such other place or places, either within or
without the State of Delaware, as the Board of Directors of the
corporation from time to time may determine or as the business of
the corporation may require.
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SECTION 3
Stockholders
3.1. Annual Meeting. The annual meeting of the stockholders
shall be held at nine-thirty o'clock in the forenoon on the
last Monday in April in each year, unless that day be a legal
holiday at the place where the meeting is to be held, in which
case the meeting shall be held at the same hour on the next
succeeding day not a legal holiday, or at such other date and
time as shall be designated from time to time by the board of
directors and stated in the notice of the meeting, at which they
shall elect a board of directors and transact such other business
as may be required by law or these by-laws or as may be specified
by the chairman of the board or by a majority of the directors
then in office or by vote of the board of directors and of which
notice was given in the notice of the meeting. Notwithstanding
the foregoing, the first annual meeting of the corporation shall
be held in the year 1974.
3.2. Special Meeting in Place of Annual Meeting. If the
election for directors shall not be held on the day designated by
these by-laws, the directors shall cause the election to be held
as soon thereafter as convenient, and to that end, if the annual
meeting is omitted on the day herein provided therefor or if the
election of directors shall not be held thereat, a special
meeting of the stockholders may be held in place of such omitted
meeting or election, and any business transacted or election held
at such special meeting shall have the same effect as if transacted
or held at the annual meeting, and in such case all references
in these by-laws to the annual meeting of the stockholders,
or to the annual election of directors, shall be deemed to refer
to or include such special meeting. Any such special meeting
shall be called, and the purposes thereof shall be specified in
the call, as provided in Section 3.3.
3.3. Special Meetings. A special meeting of the stockholders
may be called at any time by the chairman of the board or by the
board of directors. A special meeting of the stockholders shall
be called by the secretary, or in the case of the
death, absence, incapacity or refusal of the secretary, by an
assistant secretary or some other officer, upon application of a
majority of the directors or of one or more stockholders who are
entitled to vote and who hold at least fifty percent of the
capital stock issued and outstanding. Any such application shall
state the purpose or purposes of the proposed meeting. Any such
call shall state the place, date, hour, and purposes of the
meeting.
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3.4. Place of Meeting. All meetings of the stockholders
for the election of directors or for any other purpose shall be
held at such place within or without the State of Delaware as may
be determined from time to time by the chairman of the board or
the board of directors. Any adjourned session of any meeting of
the stockholders shall be held at the place designated in the
vote of adjournment.
3.5. Notice of Meetings. Except as otherwise provided by
law, a written notice of each meeting of stockholders stating the
place, day and hour thereof and, in the case of a special meeting,
the purposes for which the meeting is called, shall be given
not less than ten nor more than sixty days before the meeting, to
each stockholder entitled to vote thereat; and to each stockholder
who, by law, by the certificate of incorporation or by these
by-laws, is entitled to notice, by leaving such notice with him
or at his residence or usual place of business, or by depositing
it in the United States mail, postage prepaid, and addressed to
such stockholder at his address as it appears in the records of
the corporation. Such notice shall be given by the secretary, or
by an officer or person designated by the board of directors, or
in the case of a special meeting by the officer calling the
meeting. As to any adjourned session of any meeting of stockholders,
notice of the adjourned meeting need not be given if the
time and place thereof are announced at the meeting at which the
adjournment was taken except that if the adjournment is for more
than thirty days or if after the adjournment a new record date is
set for the adjourned session, notice of any such adjourned
session of the meeting shall be given in the manner heretofore
described. No notice of any meeting of stockholders or any
adjourned session thereof need be given to a stockholder if a
written waiver of notice, executed before or after the meeting or
such adjournment session by such stockholder is filed with the
records of the meeting or if the stockholder attends such meeting
without 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 meeting of the stockholders or any adjourned
session thereof need be specified in any written waiver of
notice.
3.6. Quorum of Stockholders. At any meeting of the
stockholders, whether the same be an original or an adjourned
session, a quorum shall consist of a majority in interest of all
stock issued and outstanding and entitled to vote at the meeting,
except in any case where a larger quorum is required by law, by
the certificate of incorporation or by these by-laws. Any
meeting may be adjourned from time to time by a majority of the
votes properly cast upon the question, whether or not a quorum is
present.
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3.7. Action by Vote. When a quorum is present at any
meeting, whether the same be an original or an adjourned session,
a plurality of the votes properly cast for election to any office
shall elect to such office and a majority of the votes properly
cast upon any question other than an election to an office shall
decide the question, except when a larger vote is required by
law, by the certificate of incorporation or by these by-laws. No
ballot shall be required for any election unless requested by a
stockholder present or represented at the meeting and entitled to
vote in the election.
3.8. Action without Meetings. Unless otherwise provided
in the certificate of incorporation, any action required or
permitted to be taken by stockholders for or in connection with
any corporate action may be taken without a meeting, without
prior notice and without a vote, if a consent in writing, setting
forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of
votes that would be necessary to authorize or take such action at
a meeting at which all shares entitled to vote thereon were
present and voted.
If action is taken by unanimous consent of stockholders, the
writing or writings comprising such unanimous consent shall be
filed with the records of the meetings of stockholders.
If action is taken by less than unanimous consent of
stockholders and in accordance with the foregoing, there shall be
filed with the records of the meetings of stockholders the
writing or writings comprising such less than unanimous consent
and a certificate signed and attested to by the secretary that
prompt notice was given to all stockholders of the taking of such
action without a meeting and by less than unanimous written
consent.
In the event that the action which is consented to is such
as would have required the filing of a certificate under any of
the provisions of the General Corporation Law of Delaware, if
such action had been voted upon by the stockholders at a meeting
thereof, the certificate filed under such provision shall state
that written consent has been given under Section 228 of said
General Corporation Law, in lieu of stating that the stockholders
have voted upon the corporate action in question, if such last
mentioned statement is required thereby.
3.9. Proxy Representation. Every stockholder may
authorize another person or persons to act for him by proxy in all
matters in which a stockholder is entitled to participate,
whether by waiving notice of any meeting, objecting to or voting
or participating at a meeting, or expressing consent or dissent
without a meeting. Every proxy must be signed by the stockholder
or by his attorney-in-fact or be authorized by such other means
as is provided in
Page 5 of 16
Section 212 of the Delaware General Corporation
Law. No proxy shall be voted or acted upon after three years
from its date unless such 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
proxy may be made irrevocable regardless of whether the interest
with which it is coupled is an interest in the stock itself or an
interest in the corporation generally. The authorization of a
proxy may but need not be limited to specified action, provided,
however, that if a proxy limits its authorization to a meeting or
meetings of stockholders, unless otherwise specifically provided
such proxy shall entitle the holder thereof to vote at any
adjourned session but shall not be valid after the final adjournment
thereof.
3.10. Votes Per Share. Unless otherwise provided in the
certificate of incorporation, each stockholder shall be entitled
to one vote for each share of capital stock having voting power
held by such stockholder.
3.11. List of Stockholders. The officer who has charge of
the stock ledger of the corporation shall prepare and make, at
least ten days before every meeting of stockholders, a complete
list of the stockholders entitled to vote at such meeting,
arranged in alphabetical order and showing the address of each
stockholder and the number of shares registered in his name.
Such list shall be open to examination by any stockholder, for
any purpose germane to the meeting, during ordinary business
hours, for at least ten days prior to the meeting either at the
place within the city where the meeting is to be held, which
place should be specified in the notice of such meeting, or at
the place where such meeting is to be held, and shall also be
produced at the time and place of the meeting during the whole
time thereof and subject to the inspection of any stockholder who
may be present. The stock ledger shall be the only evidence as
to who are stockholders entitled to examine such list or to vote
in person or by proxy at such meeting.
SECTION 4
Board of Directors
4.1. Number. The Board of Directors shall consist of one
or more members, the number thereof to be determined from time to
time by resolution of the Board of Directors. Directors need not
be stockholders.
4.2. Tenure. Except as otherwise provided by law, by the
certificate of incorporation or by these by-laws, each director
shall hold office until his successor is elected and qualified,
or until he sooner dies, resigns, is removed or becomes disqualified.
Page 6 of 16
4.3. Powers. The business of the corporation shall be managed by the
board of directors who shall have and may exercise all the power of the
corporation and do all such lawful acts and things as are not by law, the
certificate of incorporation or these by-laws directed or required to be
exercised or done by the stockholders.
4.4. Vacancies. Vacancies and any newly created directorships
resulting from any increase in the number of directors may be filled by vote of
the stockholders at a meeting called for the purpose, or by a majority of the
directors then in office, although less than a quorum, or by a sole remaining
director. When one or more directors shall resign from the board, effective at
a future date, a majority of the directors then in office, including those who
have resigned, shall have power to fill such vacancy or vacancies, the vote or
action by writing thereon to take effect when such resignation or resignations
shall become effective. The directors shall have and may exercise all their
powers notwithstanding the existence of one or more vacancies in their number,
subject to any requirements of law or of the certificate of incorporation or of
these by-laws as to the number of directors required for a quorum or for any
vote or other action.
4.5. Committees. The board of directors may, by vote of a majority of
the whole board, (a) designate, change the membership of or terminate the
existence of any committee or committees, each committee to consist of one or
more of the directors; (b) designate one or more directors as alternate members
of any such committee who may replace any absent or disqualified member at any
meeting of the committee; and (c) determine the extent to which each such
committee shall have and may exercise the powers of the board of directors in
the management of the business and affairs of the corporation, including the
power to authorize the seal of the corporation to be affixed to all papers
which require it and the power and authority to declare dividends, to authorize
the issuance of stock, or to adopt a certificate of ownership and merger
pursuant to Section 253 of the General Corporation Law of Delaware; excepting,
however, such powers which by law, by the certificate of incorporation or by
these by-laws they are prohibited from so delegating. In the absence or
disqualification of any member of such committee and his alternate, if any, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not constituting a quorum, may unanimously appoint another
member of the board of directors to act at the meeting in the place of any such
absent or disqualified member. Except as the board of directors may
otherwise determine, any committee may make rules for the conduct of its
business, but unless otherwise provided by the board or such rules, its
business shall be conducted as nearly as may be in the same manner as is
provided by these by-laws for the conduct of the business by the board of
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directors. Each committee shall keep regular minutes of its
meetings and report the same to the board of directors upon request.
4.6. Regular Meetings. Regular meetings of the board of
directors may be held without call or notice at such place within
or without the State of Delaware and at such times the board may
from time to time determine, provided that notice of the first
regular meeting following any such determination shall be given
to absent directors. A regular meeting of the directors may be
held without call or notice immediately after and at the same
place as the annual meeting of the stockholders.
4.7. Special Meetings. Special meetings of the board of
directors may be held at any time and at any place within or
without the State of Delaware designated in the notice of the
meeting, when called by the chairman of the board, or by one-
third or more in number of the directors, reasonable notice
thereof being given to each director by the secretary or by the
chairman of the board or any one of the directors calling the
meeting.
4.8. Notice. It shall be reasonable and sufficient notice
to a director to send notice by mail at least forty-eight hours
or by telegram at least twenty-four hours before the meeting
addressed to him at his usual or last known business or residence
address or to give notice to him in person or by telephone at
least twenty-four hours before the meeting. Notice of a meeting
need not be given to any director if a written waiver of notice,
executed by him before or after the meeting, is filed with the
records of the meeting, or to any director who attends the
meeting without protesting prior thereto or at its commencement
the lack of notice to him. Neither notice of a meeting nor a
waiver of a notice need specify the purposes of the meeting.
4.9. Quorum. Except as may be otherwise provided by law,
by the certificate of incorporation or by these by-laws, at any
meeting of the directors a majority of the directors then in
office shall constitute a quorum; a quorum shall not in any case
be less than one-third of the total number of directors
constituting the whole board. Any meeting may be adjourned from time
to time by a majority of the votes cast upon the question,
whether or not a quorum is present, and the meeting may be held
as adjourned without further notice.
4.10. Action by Vote. Except as may be otherwise provided
by law, by the certificate of incorporation or by these by-laws,
when a quorum is present at any meeting the vote of a majority of
the directors present shall be the act of the board of directors.
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4.11. Action Without a Meeting. Any action required or
permitted to be taken at any meeting of the board of directors or
a committee thereof may be taken without a meeting if all the
members of the board or of such committee, as the case may be,
consent thereto in writing, and such writing or writings are
filed with the records of the meeting of the board or of such
committee. Such consent shall be treated for all purposes as the
act of the board or of such committee, as the case may be.
4.12. Compensation. In the discretion of the board of
directors, each director may be paid such fees for his services
as director and be reimbursed for his reasonable expenses
incurred in the performance of his duties as director as the board
of directors from time to time may determine. Nothing contained
in this Section shall be construed to preclude any director from
serving the corporation in any other capacity and receiving
reasonable compensation therefor.
4.13. Interested Directors and Officers.
(a) No contract or transaction between the corporation
and one or more of its directors or officers, or between the
corporation and any other corporation, partnership, association,
or other organization in which one or more of the corporation's
directors or officers are directors or officers, or have a
financial interest, shall be void or voidable solely for this
reason, or solely because the director or officer is present at
or participates in the meeting of the board or committee thereof
which authorizes the contract or transaction, or solely because
his or their votes are counted for such purpose, if:
(1) The material facts as to his relationship or
interest and as to the contract or transaction are disclosed
or are known to the board of directors or the committee, and
the board or committee in good faith authorizes the contract
or transaction by the affirmative votes of a majority of the
disinterested directors, even though the disinterested
directors be less than a quorum; or
(2) The material facts as to his relationship or
interest and as to the contract or transaction are disclosed
or are known to the stockholders entitled to vote thereon,
and the contract or transaction is specifically approved in
good faith by vote of the stockholders; or
(3) The contract or transaction is fair as to the
corporation as of the time it is authorized, approved or
ratified, by the board of directors, a committee thereof, or
the stockholders.
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(b) Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the board of
directors or of a committee which authorizes the contract or
transaction.
SECTION 5
Officers and Agents
5.1. Enumeration; Qualification. The officers of the
corporation shall be a chairman of the board, a treasurer, a
secretary and such other officers, if any, as the board of
directors from time to time may in its discretion elect or
appoint including without limitation a vice-chairman of the
board, one or more vice presidents and a controller. The
corporation may also have such agents, if any, as the board of
directors from time to time may in its discretion choose. Any
officer may be, but none except the chairman and any vice-chairman
of the board need be, a director or stockholder. Any two or more
offices may be held by the same person. Any officer may be
required by the board of directors to secure the faithful
performance of his duties to the corporation by giving bond in such
amount and with sureties or otherwise as the board of directors
may determine.
5.2. Powers. Subject to law, to the certificate of
incorporation and to the other provisions of these by-laws, each
officer shall have, in addition to the duties and power herein
set forth, such duties and powers as are commonly incident to his
office and such additional duties and powers as the board of
directors may from time to time designate.
5.3. Election. The officers may be elected to the board
of directors at their first meeting following the annual meeting
of the stockholders or at any other time. At any time or from
time to time the directors may delegate to any officer their
power to elect or appoint any other officer or any agents.
5.4. Tenure. Each officer shall hold office until the
first meeting of the board of directors following the next annual
meeting of the stockholders and until his respective successor is
chosen and qualified unless a shorter period shall have been
specified by the terms of his election or appointment, or in each
case until he sooner dies, resigns, is removed or becomes disqualified.
Each agent shall retain his authority at the pleasure
of the directors, or the officer by whom he was appointed or the
officer who then holds agent appointive power.
5.5. Chairman and Vice-Chairman of the Board of Directors.
Except as otherwise voted by the directors, the chairman of the
board shall be the chief executive officer of the corporation, he
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shall preside at all meetings of the stockholders and directors
at which he is present and shall have such other powers and
duties as the board of directors, executive committee or any
other duly authorized committee shall from time to time designate.
Except as otherwise voted by the directors, the vice-chairman
of the board, if any is elected or appointed, shall assume
the duties and powers of the chairman of the board in his absence
and shall otherwise have such duties and powers as shall be
designated from time to time by the board of directors.
5.6. Vice Presidents. Any vice presidents shall have such
duties and powers as shall be designated from time to time by the
board of directors or by the chairman of the board.
5.7. Treasurer and Assistant Treasurers. Except as
otherwise voted by the directors, the treasurer shall be the
chief financial officer of the corporation and shall be in charge
of its funds and valuable papers, and shall have such other
duties and powers as may be designated from time to time by the
board of directors or by the chairman of the board. If no
controller is elected, the treasurer shall also have the duties
and powers of the controller.
Any assistant treasurers shall have such duties and powers
as shall be designated from time to time by the board of directors,
the chairman of the board or the treasurer.
5.8. Controller and Assistant Controllers. If a controller
is elected, he shall be the chief accounting officer of the
corporation and shall be in charge of its books of account and
accounting records, and of its accounting procedures. He shall
have such other duties and powers as may be designated from time
to time by the board of directors, the chairman of the board or
the treasurer.
Any assistant controller shall have such duties and powers
as shall be designated from time to time by the board of directors,
the chairman of the board, the treasurer or the controller.
5.9. Secretary and Assistant Secretaries. The secretary
shall record all proceedings of the stockholders, of the board of
directors and of committees of the board of directors in a book
or series of books to be kept therefor and shall file therein all
writings of, or related to action by stockholder or director
consent. In the absence of the secretary from any meeting, an
assistant secretary, or if there be none or he is absent, a
temporary secretary chosen at the meeting, shall record the
proceedings thereof. Unless a transfer agent has been appointed
the secretary shall keep or cause to be kept the stock and
transfer
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records of the corporation, which shall contain the
names and record addresses of all stockholders and the number of
shares registered in the name of each stockholder. He shall have
such other duties and powers as may from time to time be designated
by the board of directors or the chairman of the board.
Any assistant secretaries shall have such duties and powers
as shall be designated from time to time by the board of directors,
the chairman of the board or the secretary.
SECTION 6
Resignations and Removals
6.1. Any director or officer may resign at any time by
delivering his resignation in writing to the chairman of the
board or the secretary or to a meeting of the board of directors.
Such resignation shall be effective upon receipt unless specified
to be effective at some other time, and without in either case
the necessity of its being accepted unless the resignation shall
so state. A director (including persons elected by directors to
fill vacancies in the board) may be removed from office with or
without cause by the vote of the holders of a majority of the
shares issued and outstanding and entitled to vote in the election
of directors. The board of directors may at any time remove
any officer either with or without cause. The board of directors
may at any time terminate or modify the authority of any agent.
No director or officer resigning and (except where a right to
receive compensation shall be expressly provided in a duly
authorized written agreement with the corporation) no director or
officer removed, shall have any right to any compensation as such
director or officer for any period following his resignation or
removal, or any right to damages on account of such removal,
whether his compensation be by the month or by the year or
otherwise; unless in the case of a resignation, the directors, or
in the case of a removal, the body acting on the removal, shall
in their or its discretion provide for compensation.
SECTION 7
Vacancies
7.1 If the office of the chairman of the board or the
treasurer or the secretary becomes vacant, the directors may
elect a successor by vote of a majority of the directors then
in office. If the office of any other officer becomes vacant,
any person or body empowered to elect or appoint that officer
may choose a successor. Each such successor shall hold office
for the unexpired term, and in the case of the chairman of the
board, the treasurer and the secretary until his successor is
chosen and qualified, or
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in each case until he sooner dies, resigns, is removed or becomes
disqualified. Any vacancy of a directorship shall be filled as specified
in Section 4.4 of these by-laws.
SECTION 8
Capital Stock
8.1. Stock Certificates. Each stockholder shall be entitled to a
certificate stating the number and the class and the designation of the
series, if any, of the shares held by him, in such form as shall, in
conformity to law, the certificate of incorporation and the by-laws, be
prescribed from time to time by the board of directors. Such certificates
shall be signed by the chairman or vice chairman of the board of directors,
or a vice president and by the treasurer or an assistant treasurer or by
the secretary or an assistant secretary. Any of or all the signatures on
the certificate may be a facsimile. In case any officer, transfer agent,
or registrar who has signed or whose facsimile signature has been placed
on such 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 time of its issue.
8.2. Loss of Certificates. In the case of the alleged theft, loss,
destruction or mutilation of a certificate of stock, a duplicate certificate
may be issued in place thereof, upon such terms, including receipt of a bond
sufficient to indemnify the corporation against any claim or account thereof,
as the board of directors may prescribe.
SECTION 9
Transfer of Shares of Stock
9.1. Transfer on Books. Subject to the restrictions, if any, stated or
noted on the stock certificate, shares of stock may be transferred on the books
of the corporation by the surrender to the corporation or its transfer agent
of the certificate therefor properly endorsed or accompanied by a written
assignment and power of attorney properly executed, with necessary transfer
stamps affixed, and with such proof of the authenticity of signature as the
board of directors or the transfer agent of the corporation may reasonably
require. Except as may be otherwise required by law, by the certificate of
incorporation or by these by-laws, the corporation shall be entitled to treat
the record holder of stock as shown on its books as the owner of such stock for
all purposes, including
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the payment of dividends and the right to receive notice and to
vote or to give any consent with respect thereto and to be held
liable for such calls and assessments, if any, as may lawfully
be made thereon, regardless of any transfer, pledge or other
disposition of such stock until the shares have been properly
transferred on the books of the corporation.
It shall be the duty of each stockholder to notify the
corporation of his post office address.
9.2. Record Date and Closing Transfer Books. In order
that the corporation may determine the stockholders entitled to
notice of or to vote at any meeting of stockholders or any
adjournment thereof, or to express consent to corporate action in
writing without a meeting, or entitled to receive payment of any
dividend or other distributions or allotment of any rights, or
entitled to exercise any rights in respect of any change, conversion
or exchange of stock or for the purpose of any other lawful
action, the board of directors may fix, in advance, a record
date, which shall not be more than sixty nor less than ten days
(or such longer period as may be required by law) before the date
of such meeting, nor more than sixty days prior to any other
action.
If no record date is fixed:
(a) The record date for determining stockholders entitled
to notice of or to vote at a meeting of stockholders shall be at
the close of business on the day next preceding the day on which
notice is given, or, if notice is waived, at the close of business
on the day next preceding the day on which the meeting is
held.
(b) The record date for determining stockholders entitled
to express consent to corporate action in writing without a
meeting, when no prior action by the board of directors is
necessary, shall be the day on which the first written consent is
expressed.
(c) The record date for determining stockholders for any
other purpose shall be at the close of business on the day on
which the board of directors adopts the resolution relating
thereto.
A determination of stockholders of record entitled to notice
of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the board of
directors may fix a new record date for the adjourned meeting.
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SECTION 10
Indemnification of Directors and Officers
10.1. Right to Indemnification. Each director or officer
of the corporation who was or is a party or is threatened to be
made a party to or is involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative (hereinafter
a 'proceeding'), by reason of the fact that he or she, or a
person of whom he or she is the legal representative, is or was a
director or officer of the corporation or is or was serving at
the request of the corporation as a director, officer, employee
or agent of another corporation or of a partnership, joint
venture, trust or other enterprise, including service with
respect to employee benefit plans, whether the basis of such
proceeding is alleged action in an official capacity or in any
other capacity while serving as a director, officer, employee or
agent, shall be indemnified and held harmless by the corporation
to the fullest extent permitted by the laws of Delaware, as the
same exist or may hereafter be amended (but, in the case of any
such amendment, only to the extent that such amendment permits
the corporation to provide broader indemnification rights than
said law permitted the corporation to provide prior to such
amendment), against all costs, charges, expenses, liabilities and
losses (including attorneys' fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid or to be paid in settlement)
reasonably incurred or suffered by such person in connection
therewith and such indemnification shall continue as to a person
who has ceased to be a director or officer and shall inure to the
benefit of his or her heirs, executors and administrators:
provided however, that except for any proceeding seeking to
enforce or obtain payment under any right to indemnification by
the corporation, the corporation shall indemnify any such person
seeking indemnification in connection with a proceeding (or part
thereof) initiated by such person only if the corporation has
joined in or consented to the initiation of such proceeding (or
part thereof). The corporation may, by action of its Board of
Directors, either on a general basis or as designated by the
Board of Directors, provide indemnification to employees and
agents of the corporation, and to directors, officers, employees
and agents of the Company's subsidiaries, with the same scope and
effect as the foregoing indemnification of directors and officers.
Notwithstanding anything in this Section 10 to the contrary,
no person shall be entitled to indemnification pursuant to
this Section on account of any suit in which judgment is rendered
against such person for an accounting of profits made from the
purchase and sale by such person of securities of the corporation
pursuant to the provisions of Section 16(b) of the Securities
Exchange Act of 1934.
Page 15 of 16
10.2. Non-Exclusivity of Rights. The right to indemnification
and the payment of expenses incurred in defending a proceeding
in advance of its final disposition conferred in this Section
10 shall not be exclusive of any other right which any person may
have or hereafter acquire under any statute, provision of the
certificate of incorporation, by-law, agreement, vote of stockholders
or disinterested directors or otherwise. Each person who
is or becomes a director or officer of the corporation shall be
deemed to have served or to have continued to serve in such
capacity in reliance upon the indemnity provided in this Section 10.
10.3. Insurance. The corporation may maintain insurance,
at its expense, to protect itself and any director, officer,
employee or agent of the corporation or another corporation,
partnership, joint venture, trust or other enterprise against any
such expense, liability or loss, whether or not the corporation
would have the power to indemnify such person against such
expense, liability or loss under the General Corporation Law of
Delaware.
10.4. Expenses as a Witness. To the extent that any
director, officer, employee or agent of the corporation is by
reason of such position, or a position with another entity at the
request of the corporation, a witness in any action, suit or
proceeding, he or she shall be indemnified against all costs and
expenses actually and reasonably incurred by him or her on his or
her behalf in connection therewith.
10.5. Indemnity Agreements. The corporation may enter into
indemnity agreements with the persons who are members of its
board of directors from time to time, and with such officers,
employees and agents of the corporation and with such officers,
directors, employees and agents of subsidiaries as the board may
designate, such indemnity agreements to provide in substance that
the corporation will indemnify such persons as contemplated by
this Section 10, and to include any other substantive or procedural
provisions regarding indemnification as are not inconsistent
with the General Corporation Law of Delaware. The provisions
of such indemnity agreements shall prevail to the extent
that they limit or condition or differ from the provisions of
this Section 10.
10.6. Definition of Corporation. For purposes of this
Section 10 reference to 'the corporation' includes all
constituent corporations absorbed in a consolidation or merger as well as
the resulting or surviving corporation so that any person who is
or was a director or officer of such a constituent corporation
shall stand in the same position under the provisions of this
Section with respect to the resulting or surviving corporation as
he would if he had served the resulting or surviving corporation
in the same capacity.
Page 16 of 16
SECTION 11
Corporate Seal
11.1. The seal of the corporation shall, subject to alteration
by the directors, consist of a flat-faced circular die with
the word 'Delaware' together with the name of the corporation and
the year of its organization, cut or engraved thereon. The seal
may be used by causing it or a facsimile thereof to be impressed
or affixed or reproduced or otherwise.
SECTION 12
Execution of Papers
12.1. Except as the board of directors may generally or in
some particular cases authorize the execution thereof in some
other manner, all deeds, leases, transfers, contracts, bonds,
notes, checks, drafts and other obligations made, accepted or
endorsed by the corporation shall be signed by the chairman of
the board or by one of the vice presidents or by the treasurer.
SECTION 13
Fiscal Year
13.1. Except as from time to time otherwise provided by the
board of directors, the fiscal year of the corporation shall end
on the 31st day of December of each year.
SECTION 14
Amendments
14.1. These by-laws may be made, altered, amended or
repealed by vote of a majority of the directors in office or by
vote of a majority of the stock outstanding and entitled to vote.
Any by-law, whether made, altered, amended or repealed by the
stockholders or directors, may be altered, amended or reinstated,
as the case may be, by either the stockholders or by the directors
as hereinbefore provided.