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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported)
May 15, 2002
CHICAGO MERCANTILE EXCHANGE HOLDINGS INC.
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(Exact Name of Registrant as Specified in Charter)
Delaware 000-32645 36-4459170
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(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification No.)
30 South Wacker Drive, Chicago, Illinois 60606
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(Address of Principal Executive Office) (Zip Code)
Registrant's telephone number, including area code: (312) 930-1000
N/A
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(Former Name or Former Address, if Changed Since Last Report)
ITEM 5. Other Events.
At the annual meeting of shareholders of Chicago Mercantile Exchange
Holdings Inc. (the "Company"), held on April 17, 2002, the shareholders of the
Company voted to adopt an amendment to the Company's certificate of
incorporation (the "Amendment"). The Amendment authorized an increase in the
size of the Board of Directors from 19 to 20 members. The Amendment, as filed
with the Secretary of State of the State of Delaware, is filed as Exhibit 3.2
hereto.
In addition, in connection with the adoption of the Amendment, the
Board of Directors of the Company adopted an amendment to the Company's
Bylaws. The Amended and Restated Bylaws of the Company are filed as Exhibit
3.3 hereto.
ITEM 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(c) Exhibits.
Exhibit
Number Description
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3.1 Amended and Restated Certificate of Incorporation of Chicago
Mercantile Exchange Holdings Inc. (incorporated by reference
to Exhibit 3.1 to Chicago Mercantile Exchange Holdings
Inc.'s Current Report on Form 8-K, filed with the SEC on
December 4, 2001, File No. 0-32645).
3.2 Certificate of Amendment to the Amended and Restated
Certificate of Incorporation of Chicago Mercantile Exchange
Holdings Inc.
3.3 Amended and Restated Bylaws of Chicago Mercantile Exchange
Holdings Inc.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
as amended, the registrant has duly caused this report to be signed on its
behalf by the undersigned hereunto duly authorized.
CHICAGO MERCANTILE EXCHANGE HOLDINGS INC.
Registrant
Date: May 15, 2002 By: /s/ C.S. Donohue
--------------------------------
Craig S. Donohue
Managing Director and
Chief Administrative Officer
EXHIBIT 3.2
CERTIFICATE OF AMENDMENT
TO THE
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
CHICAGO MERCANTILE EXCHANGE HOLDINGS INC.
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Pursuant to Section 242 of the General
Corporation Law of the State of Delaware
-----------------------------------------
CHICAGO MERCANTILE EXCHANGE HOLDINGS INC., a corporation
duly organized and existing under the General Corporation Law of the State of
Delaware (the "Corporation"), does hereby certify that:
FIRST: Article Five of the Amended and Restated Certificate
of Incorporation of the Corporation is hereby amended to read in its entirety
as follows:
"(A) The board of directors of the corporation shall consist
of 20 members, including 14 Equity Directors, three Class B-1
Directors, two Class B-2 Directors and one Class B-3 Director. The
board of directors of the corporation shall be divided into two
classes, designated Class I and Class II. The Class I directors shall
consist of seven Equity Directors, two Class B-1 Directors and one
Class B-2 Director (the "Class I Directors"). The Class I Directors
shall initially be those directors elected at the Annual Meeting of
Shareholders of the corporation held in April 2002. The terms of the
initial Class I Directors shall expire at the Annual Meeting of
Shareholders of the corporation to be held in April 2004. The terms
of the remaining seven Equity Directors, one Class B-1 Director, one
Class B-2 Director and one Class B-3 Director shall expire at the
Annual Meeting of Shareholders of the corporation to be held in April
2003 (the "2003 Annual Meeting").
(B) At the 2003 Annual Meeting, when the terms of the
non-Class I Directors expire, the Class II Directors shall be elected
as follows: seven Equity Directors, one Class B-1 Director, one Class
B-2 Director and one Class B-3 Director (the "Class II Directors").
The terms of the initial Class II Directors shall expire at the
Annual Meeting of Shareholders of the corporation to be held in April
2005.
(C) At each succeeding annual meeting of shareholders,
beginning in 2004, successors to the class of directors whose terms
expire at that annual meeting shall be elected for a two-year term,
and until their successors are duly elected and qualified and have
accepted office, subject to death, resignation or removal from
office. Any vacancy occurring in a directorship may be filled by the
board of directors and any director filling such a vacancy shall have
the same remaining term as that of his or her predecessor; PROVIDED,
HOWEVER, that any vacancy occurring with respect to a Class B-1
Director, a Class B-2 Director or a Class B-3 Director shall be
filled from the candidates who lost for such position from the most
recent election, with the candidates being selected to fill such
vacancy in the order of the aggregate number of votes received in
such previous election.
(D) No person shall be eligible for election as a Class B-1
Director, a Class B-2 Director or a Class B-3 Director unless he or
she shall own, or be recognized as the owner for the purposes of the
Exchange of, at least one share of the class of Class B Common Stock
entitled to elect such director.
(E) Any director may be removed from office at any time, but
only for cause and only by the affirmative vote of the holders of at
least two-thirds of the voting power of the shares entitled to elect
such person as a director."
SECOND: The foregoing amendment to the Amended and Restated
Certificate of Incorporation of the Corporation was duly adopted in accordance
with the provisions of Section 242 of the General Corporation Law of the State
of Delaware.
IN WITNESS WHEREOF, the undersigned has caused this
Certificate of Amendment to be duly executed in its corporate name this 19th
day of April, 2002.
CHICAGO MERCANTILE EXCHANGE
HOLDINGS INC.
By: /s/ Craig S. Donohue
--------------------
Name: Craig S. Donohue
Title: Managing Director and
Chief Administrative Officer
EXHIBIT 3.3
SECOND AMENDED AND RESTATED BYLAWS
OF
CHICAGO MERCANTILE EXCHANGE HOLDINGS INC.
ARTICLE I
Shareholders' Meetings
Section 1.1 Annual Meetings. (a) The annual meetings of shareholders
shall be held on such date, at such time and at such place, either within or
without the state of Delaware, as shall be designated from time to time by the
Board of Directors and stated in the notice of the meeting. Subject to
paragraph (b) of this Section 1.1, any other proper business may be transacted
at an annual meeting.
(b) At the annual meetings the shareholders shall elect the Board of
Directors, and transact such other business as may properly be brought before
the meeting. For such 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
shareholder. For business to be properly brought before an annual meeting by a
shareholder, the shareholder must have given written notice thereof to the
Secretary, delivered or mailed to and received at the principal executive
offices of the Corporation (x) not less than 90 days nor more than 120 days
prior to the meeting, or (y) if less than 100 days notice of the meeting or
prior public disclosure of the date of the meeting is given or made to
shareholders, not later than the close of business on the tenth day following
the day on which the notice of the meeting was mailed or, if earlier, the day
on which such public disclosure was made. A shareholder's notice to the
Secretary shall set forth as to each item of business the shareholder proposes
to bring before the meeting (1) a brief description of such item and the
reasons for conducting such business at the meeting and a representation that
the shareholder intends to appear in person or by proxy at the meeting to
introduce the business specified in the notice, (2) the name and address, as
they appear on the Corporation's records, of the shareholder proposing such
business, (3) the class, and series if any, and number of shares of stock of
the Corporation which are beneficially owned by the shareholder (for purposes
of the regulations under Sections 13 and 14 of the Securities Exchange Act of
1934, as amended (the "Exchange Act")), and (4) any material interest of the
shareholder in such business. No business shall be conducted at any annual
meeting except in accordance with the procedures set forth in this paragraph
(b). The chairman of the meeting at which any business is proposed by a
shareholder 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 1.2 Special Meetings. Special meetings of shareholders for
any purpose or purposes may be called at any time only by the Chairman of the
Board or by a majority of the total number of authorized directors. The
business transacted at a special meeting of shareholders shall be limited to
the purpose or purposes for which such meeting is called.
Section 1.3 Notice of Meetings. A written notice of each annual or
special meeting of shareholders shall be given stating the place, date and
time of the meeting, and, in the case of a special meeting, the purpose or
purposes for which the meeting is called. Unless otherwise provided by law,
the Certificate of Incorporation or these Bylaws, such notice of meeting shall
be given not less than 10 nor more than 60 days before the date of the meeting
to each shareholder of record 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 shareholder at such shareholder's address as it
appears on the records of the Corporation. An affidavit of the Secretary or an
Assistant Secretary or of the transfer agent of the Corporation that the
notice has been given shall, in the absence of fraud, be prima facie evidence
of the facts stated therein.
Section 1.4 Adjournments. Any annual or special meeting of
shareholders may be adjourned from time to time to reconvene at the same or
some other place, and notice need not be given of any such adjourned meeting
if the date, time and place thereof 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 30 days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be
given to each shareholder of record entitled to vote at the adjourned meeting
in accordance with Section 1.3 of these Bylaws.
Section 1.5 Quorum. Except as otherwise provided by law, the
Certificate of Incorporation or these Bylaws, the presence in person or by
proxy of the holders of stock having not less than one-third of the votes
which could be cast by the holders of all outstanding stock entitled to vote
at the meeting shall constitute a quorum at each meeting of shareholders. In
the absence of a quorum, then either (i) the chairman of the meeting or (ii)
the shareholders may, by the affirmative vote of the holders of stock having a
majority of the votes which could be cast by all such holders, adjourn the
meeting from time to time in the manner provided in Section 1.4 of these
Bylaws until a quorum is present. If a quorum is present when a meeting is
convened, the subsequent withdrawal of shareholders, even though less than a
quorum remains, shall not affect the ability of the remaining shareholders
lawfully to transact business.
Section 1.6 Organization. Meetings of shareholders shall be presided
over by the Chairman of the Board, the Vice Chairman of the Board, the Second
Vice Chairman of the Board or the President (in that order), or in their
absence, inability or unwillingness, by a chairman designated by the Board of
Directors, or in the absence of such designation, by a chairman chosen at the
meeting. The Secretary shall act as secretary of the meeting, but in his or
her absence, the chairman of the meeting may appoint any person to act as
secretary of the meeting. The chairman of any meeting of the shareholders
shall determine the order of business and the procedure at the meeting,
including such regulation of the manner of voting and the conduct of business.
Section 1.7 Voting. (a) The shareholders entitled to vote at any
meeting of shareholders shall be determined in accordance with the provisions
of Section 1.10 of these Bylaws, subject to the provisions of Sections 217 and
218 of the General Corporation Law of Delaware (relating to voting rights of
fiduciaries, pledgors and joint owners of stock and to voting trusts and other
voting agreements).
(b) Except as may be otherwise provided in the Certificate of
Incorporation or in these Bylaws, or as may be otherwise required by
applicable law: (i) in all matters other than the election of Directors, the
affirmative vote of the holders of shares representing a majority of the votes
present in person or represented by proxy at the meeting and entitled to vote
on the subject matter shall be the act of the shareholders; (ii) each Director
shall be elected by a plurality of the votes of the shares present in person
or represented by proxy at the meeting and entitled to vote on the election of
such Director; and (iii) where a separate vote by a class or series is
required, other than with respect to the election of Directors, the
affirmative vote of the holders of shares of such class or series representing
a majority of the votes present in person or represented by proxy at the
meeting shall be the act of such class or series.
(c) Voting at meetings of shareholders need not be by written ballot
and need not be conducted by inspectors of election unless so required by
Section 1.9 of these Bylaws 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 represented by proxy at
such meeting.
(d) Stock of the Corporation belonging to the Corporation, or to
another Corporation, a majority of the shares entitled to vote in the election
of Directors of which are held by the Corporation, shall not be voted at any
meeting of shareholders and shall not be counted in the total number of
outstanding shares for the purpose of determining whether a quorum is present.
Nothing in this Section 1.7 shall limit the right of the Corporation to vote
shares of stock of the Corporation held by it in a fiduciary capacity.
Section 1.8 (a) Each shareholder entitled to vote at a meeting of
shareholders may authorize another person or persons to act for such
shareholder 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 shareholder 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 shareholder may authorize another person or persons to act for
such shareholder as proxy (i) by executing a writing authorizing such person
or persons to act as such, which execution may be accomplished by such
shareholder or such shareholder'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
shareholder.
(c) Any inspector or inspectors appointed pursuant to Section 1.9 of
these Bylaws shall examine each Transmission to determine whether it is 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 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 1.9 Voting Procedures and Inspectors of Elections. (a) Unless
otherwise provided in the Certificate of Incorporation or required by law, the
following provisions of this Section 1.9 shall apply only if and when 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 shareholders.
(b) The Corporation shall, in advance of any meeting of shareholders,
appoint one or more inspectors of election (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 fails to act. If no
inspector or alternate is able to act at such meeting, the chairman of the
meeting shall appoint one or more inspectors to act at the meeting. Each
inspector of election, before entering upon the discharge of his duties, shall
take and sign an oath to execute faithfully the duties of inspector with
strict impartiality and according to the best of his ability.
(c) 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 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.
(d) The date and time of the opening and the closing of the polls for
each matter upon which the shareholders 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 shareholder shall determine otherwise.
(e) 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 1.8 of these Bylaws, 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 shareholder of record to cast or more votes than such shareholder 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 (c) of this Section 1.9, 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 1.10 Fixing Date of Determination of Shareholders of Record.
(a) In order that the Corporation may determine the shareholders entitled (i)
to notice of or to vote at any meeting of shareholders 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 shareholders entitled to notice of or to vote at any
meeting of shareholders or adjournment thereof, shall, unless otherwise
required by law, be not more than 60 nor less than 10 days before the date of
such meeting; and (2) in the case of any other action, shall be not more than
60 days before such action.
(b) If no record date is fixed, (i) the record date for determining
shareholders entitled to notice of or to vote at a meeting of shareholders
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 shareholders 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 shareholders of record entitled to notice of
or to vote at a meeting of shareholders shall apply to any adjournment of the
meeting, but the Board of Directors may fix a new record date for the
adjourned meeting.
Section 1.11 List of Shareholders Entitled to Vote. The Secretary
shall prepare, at least 10 days before every meeting of shareholders, a
complete list of the shareholders 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 shareholder. Such list shall be open to the
examination of any shareholder, for any purpose germane to the meeting, during
ordinary business hours, for a period of at least 10 days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of meeting, or, if not so
specified, at the place where the meeting is to be held. 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 shareholder who is present. The stock
ledger shall be the only evidence as to who are the shareholders entitled to
examine the stock ledger or to vote in person or by proxy at any meeting of
shareholders.
ARTICLE II
Board of Directors
Section 2.1 Number; Qualifications. The Board of Directors shall
consist of the number of Directors as provided in the Certificate of
Incorporation, and no person shall serve as a Director unless he or she meets
the requirements, if any, provided in the Certificate of Incorporation for
service on the Board of Directors.
Section 2.2 Election; Resignation; Vacancies. (a) Subject to the
provisions of the Certificate of Incorporation, at each annual meeting of
shareholders, the shareholders shall elect, pursuant to the terms of the
Certificate of Incorporation, the successors to the Directors whose terms
expire at that meeting, and each Director shall hold office until the annual
meeting at which such Director's term expires and the election and
qualification of his or her successor, or until his or her earlier death,
resignation or removal. Any Director may resign at any time by giving written
notice to the Chairman of the Board, if any, the President or the Secretary.
Unless otherwise stated in a notice of resignation, it shall take effect when
received by the officer to whom it is directed, without any need for its
acceptance.
(b) Only persons who are nominated in accordance with the following
procedures shall be eligible for election as Equity Directors (as defined in
the Certificate of Incorporation). Nominations of persons for election as
Equity Directors may be made at any annual meeting of shareholders, or at any
special meeting of shareholders called for the purpose of electing directors,
(i) by or at the direction of the Board of Directors (or any duly authorized
committee thereof) or (ii) by any shareholder of the Corporation (A) who is a
shareholder of record on the date of the giving of the notice provided for in
this Section 2.2(b) and on the record date for the determination of
shareholders entitled to vote at such meeting and (B) who complies with the
notice procedures set forth in this Section 2.2(b).
In addition to any other applicable requirements, for a nomination to
be made by a shareholder, such shareholder must have given timely notice
thereof in proper written form to the Secretary of the Corporation.
To be timely, a shareholder's notice to the Secretary must be
delivered or mailed to and received at the principal executive offices of the
Corporation (x) not less than 90 days nor more than 120 days prior to the
meeting, or (y) if less than 100 days notice of the meeting or prior public
disclosure of the date of the meeting is given or made to shareholders, not
later than the close of business on the tenth day following the day on which
notice of the meeting was made, or if earlier, the day on which such public
disclosure was made.
To be in proper written form, a shareholder's notice to the Secretary
must set forth (1) as to each person whom the shareholder proposes to nominate
for election as a director (A) the name, age, business address and residence
address of the person, (B) the principal occupation or employment of the
person, (C) the class and series, if any, and number of shares of stock of the
Corporation which are beneficially owned by the person (for purposes of the
regulations under Sections 13 and 14 of the Exchange Act) and (D) any other
information relating to the person that would be required to be disclosed in a
proxy statement or other filings required to be made in connection with
solicitations of proxies for election of directors pursuant to Section 14 of
the Exchange Act, and the rules and regulations promulgated thereunder; and
(2) as to the shareholder giving the notice (i) the name and address, as they
appear in the Corporation's records, of the shareholder proposing such
nomination, (ii) the class and series, if any, and number of shares of stock
of the Corporation which are beneficially owned by the shareholder (for
purposes of the regulations under Sections 13 and 14 of the Exchange Act),
(iii) a description of all arrangements or understandings between the
shareholder and each proposed nominee and any other person or persons
(including their names) pursuant to which the nomination(s) are to be made by
the shareholder, (iv) a representation that the shareholder intends to appear
in person or by proxy at the meeting to nominate the persons named in its
notice and (v) any other information relating to the shareholder that would be
required to be disclosed in a proxy statement or other filings required to be
made in connection with solicitations of proxies for election of directors
pursuant to Section 14 of the Exchange Act and the rules and regulations
promulgated thereunder. Such notice must be accompanied by a written consent
of each proposed nominee to being named as a nominee and to serve as an Equity
Director if elected.
No person shall be eligible for election as an Equity Director of the
Corporation unless nominated in accordance with the procedures set forth in
this Section 2.2(b). If the Chairman of the meeting determines that a
nomination was not made in accordance with the foregoing procedures, the
Chairman shall declare to the meeting that the nomination was defective and
such defective nomination shall be disregarded.
(c) Nominees for election as Class B-1 Directors, Class B-2 Directors
and Class B-3 Directors (as such terms are defined in the Certificate of
Incorporation) shall be selected by the respective Class B Nominating
Committees as provided in Article IV.
(d) A vacancy, howsoever occurring, in a directorship shall be filled
in the manner specified in the Certificate of Incorporation.
Section 2.3 Regular Meetings. Regular meetings of the Board of
Directors may be held without call or notice at such times and at such places,
within or without the state of Delaware, as shall be fixed by resolution of
the Board of Directors.
Section 2.4 Special Meetings. Special meetings of the Board of
Directors may be called by the Chairman of the Board, the President, or a
majority of the members of the Board of Directors then in office and may be
held at any time, date or place, within or without the State of Delaware, as
the person or persons calling the meeting shall fix. Notice of the time and
place of special meetings shall be delivered personally or by telephone to
each Director or sent by first-class mail or telegram, charges prepaid,
addressed to each Director at that Director's address as it is shown on the
records of the Corporation. If the notice is mailed, it shall be deposited in
the United States mail at least four days before the time of the holding of
the meeting. If the notice is delivered personally or by telephone or by
telegram, it shall be delivered personally or by telephone or to the telegraph
company at least 48 hours before the time of the holding of the meeting. Any
oral notice given personally or by telephone may be communicated either to the
Director or to a person at the office of the Director who the person giving
the notice has reason to believe will promptly communicate it to the Director.
The notice need not specify the purpose or the place of the meeting, if the
meeting is to be held at the principal executive office of the Corporation.
Section 2.5 Organization. Meetings of the Board of Directors shall be
presided over by the Chairman of the Board, the Vice Chairman of the Board,
the Second Vice Chairman of the Board or the President (in that order), or in
their absence, inability or unwillingness, by a chairman chosen at the
meeting. The Secretary shall act as secretary of the meeting, but in his or
her absence the chairman of the meeting may appoint any person to act as
secretary of the meeting. A majority of the Directors present at a meeting,
whether or not they constitute a quorum, may adjourn such meeting to any other
date, time or place without notice other than announcement at the meeting.
Section 2.6 Quorum; Vote Required for Action. (a) At all meetings of
the Board of Directors, a majority of the whole Board of Directors shall
constitute a quorum for the transaction of business. Unless the Certificate of
Incorporation or these Bylaws otherwise provide, the vote of a majority of the
Directors present at a meeting at which a quorum is present shall be the act
of the Board of Directors. A meeting at which a quorum is initially present
may continue to transact business notwithstanding the withdrawal of Directors,
if any action taken is approved by at least a majority of the required quorum
for that meeting.
(b) If a quorum is not present at any meeting of the Board of
Directors, then the Directors present thereat may adjourn the meeting from
time to time, without notice other than announcement at the meeting, until a
quorum is present.
(c) Whenever notice is required to be given under any provision of
the General Corporation Law of Delaware, the Certificate of Incorporation or
these Bylaws, a written waiver thereof, 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 Directors, or members of a committee of
Directors, need be specified in any written waiver of notice unless so
required by the Certificate of Incorporation or these Bylaws.
Section 2.7 Telephonic Meetings. Directors, or any committee of
Directors designated by the Board of Directors, may participate in a meeting
of the Board of Directors or such 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 2.7 shall constitute presence in person at
such meeting.
Section 2.8 Informal Action by Directors. Unless otherwise restricted
by the Certificate of Incorporation or these Bylaws, any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee thereof, may be taken without a meeting if all members of the Board
of Directors or such committee, as the case may be, consent thereto in writing
(which may be in counterparts), and the written consent or consents are filed
with the minutes of proceedings of the Board of Directors or such committee.
Section 2.9 Reliance Upon Records. Every Director, and every member
of any committee of the Board of Directors, shall, in the performance of his
or her duties, be fully protected in relying in good faith upon the records of
the Corporation and upon such information, opinions, reports or statements
presented to the Corporation by any of its officers or employees, or
committees of the Board of Directors, or by any other person as to matters the
Director or member reasonably believes are within such other person's
professional or expert competence and who has been selected with reasonable
care by or on behalf of the Corporation, including, but not limited to, such
records, information, opinions, reports or statements as to the value and
amount of the assets, liabilities and/or net profits of the Corporation, or
any other facts pertinent to the existence and amount of surplus or other
funds from which dividends might properly be declared and paid, or with which
the Corporation's capital stock might properly be purchased or redeemed.
Section 2.10 Interested Directors. 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 its 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 of Directors or committee thereof
which authorizes the contract or transaction, or solely because such person's
or their votes are counted for such purpose if (i) the material facts as to
such person's or their 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 of Directors 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 (ii) the material facts as to such person's or their relationship
or interest and as to the contract or transaction are disclosed or are known
to the shareholders entitled to vote thereon, and the contract or transaction
is specifically approved in good faith by vote of the shareholders; or (iii)
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 shareholders. 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 2.11 Compensation. Unless otherwise restricted by the
Certificate of Incorporation, the Board of Directors shall have the authority
to fix the compensation of Directors. The Directors shall be paid their
reasonable expenses, if any, of attendance at each meeting of the Board of
Directors or a committee thereof and may be paid a fixed sum for attendance at
each such meeting and an annual retainer or salary for services as a Director
or committee member. No such payment shall preclude any Director from serving
the Corporation in any other capacity and receiving compensation therefor.
Section 2.12 Presumption of Assent. 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 of 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 III
Committees of the Board of Directors
Section 3.1 Committees. The Board of Directors shall have an
Executive Committee, an Audit Committee, a Compensation Committee, a
Nominating Committee and any additional committees it may designate from time
to time by resolution passed by a majority of the whole Board, with each
committee to consist of one or more of the Directors of the Corporation.
Section 3.2 Executive Committee. The Executive Committee shall
consist of such number of Directors as may be elected from time to time by the
Board. Whenever the Board is not in session, and subject to the provisions of
applicable law, the Certificate of Incorporation or these Bylaws, the
Executive Committee shall have and exercise the authority of the Board in the
management of the Corporation. A majority of the Executive Committee shall
constitute a quorum necessary to transact business.
Section 3.3 Audit Committee. The Audit Committee shall consist of
such number of Directors (none of whom shall be an employee of the
Corporation) as may be elected from time to time by the Board. The Board of
Directors shall adopt a charter setting forth the responsibilities of the
Audit Committee. A majority of the Audit Committee shall constitute a quorum
necessary to transact business.
Section 3.4 Compensation Committee. The Compensation Committee shall
consist of such number of Directors (none of whom shall be an employee of the
Corporation) as may be elected from time to time by the Board. The
Compensation Committee shall oversee the compensation and benefits of the
employees and management of the Corporation. A majority of the Compensation
Committee shall constitute a quorum necessary to transact business.
Section 3.5 Nominating Committee. The Nominating Committee shall be
composed of five Directors. The Committee shall review the qualifications of
potential candidates for the Equity Directors and shall propose nominees for
the Equity Directors who are nominated by the Board. In making their
nominations, the Nominating Committee and the Board of Directors shall take
into consideration that (i) the Board of Directors shall have meaningful
representation of a diversity of interests, including floor brokers, floor
traders, futures commission merchants, producers, consumers, processors,
distributors and merchandisers of commodities traded on Chicago Mercantile
Exchange Inc. (the "Exchange") participants in a variety of pits or principal
groups of commodities traded on the Exchange and other market users or
participants; (ii) at least 10% of the members of Board of Directors shall be
composed of persons representing farmers, producers, merchants or exporters of
principal commodities traded on the Exchange; and (iii) at least 20% of the
members of the Board of Directors shall be composed of persons who do not
possess trading privileges on the Exchange, are not salaried employees of the
Corporation and are not officers, principals or employees who are involved in
operating the futures exchange related business of a firm entitled to members'
rates. Notwithstanding the foregoing, the Nominating Committee shall include
the Chief Executive Officer of the Corporation as a nominee for an Equity
Director included among the Class II Directors (as defined in the Certificate
of Incorporation). A majority of the Nominating Committee shall constitute a
quorum necessary to transact business.
Section 3.6 Committee Governance. The Board 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 a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not such
member or members constitute a quorum, may unanimously appoint another member
of the Board to act at the meeting in the place of any such absent or
disqualified member. Subject to the provisions of law, any such committee, to
the extent provided in the resolution of the Board or in these Bylaws, shall
have and may exercise all the powers and authority of the Board in the
management of the business and affairs of the Corporation. Each committee
shall keep regular minutes of its meetings and report the same to the Board of
Directors when required. Each committee may adopt rules for its governance not
inconsistent with the provisions of these Bylaws.
ARTICLE IV
Class B Nominating Committees
Section 4.1 Class B Nominating Committees. The holders of shares of
Class B-1 Common Stock; Class B-2 Common Stock; and Class B-3 Common Stock,
shall each elect a nominating committee for their respective class (each, a "
Class B Nominating Committee"). Each Class B Nominating Committee shall be
composed of five members.
Section 4.2 Election. (a) The initial members of the Class B
Nominating Committee for the Class B-1 Common Stock, shall consist of the
members of the Series B-1 Nominating Committee of the Exchange in office on
the date that the merger of CME Merger Subsidiary Inc., a Delaware
corporation, into the Exchange, becomes effective (the "Effective Date"); the
initial members of the Class B Nominating Committee for the Class B-2 Common
Stock, shall consist of the members of the Series B-2 Nominating Committee of
the Exchange in office on the Effective Date; and the initial members of the
Class B Nominating Committee for the Class B-3 Common Stock, shall consist of
the members of the Series B-3 Nominating Committee of the Exchange in office
on the Effective Date. At each annual meeting of shareholders thereafter,
holders of the Class B-1 Common Stock; Class B-2 Common Stock; and Class B-3
Common Stock, shall elect the members of their respective Class B Nominating
Committees from candidates selected as provided in Section 4.2(b). Members of
each Class B Nominating Committee shall hold office for a term of one year and
until their successors are duly elected and qualified.
(b) Commencing with the annual meeting held in 2002, each Class B
Nominating Committee shall nominate, by letter directed to the Chairman of the
Board not later than 90 days prior to an annual meeting, candidates for
election to such Committee at such annual meeting. Each Class B Nominating
Committee shall nominate 10 candidates. Such nominations shall include, as
part of or in addition to such 10 candidates, (i) any candidate who is
nominated by the holders of at least 100 shares of Class B-1 Common Stock, in
the case of the Class B Nominating Committee representing such class, (ii) any
candidate who is nominated by the holders of at least 100 shares of Class B-2
Common Stock, in the case of the Class B Nominating Committee representing
such class, and (iii) any candidate who is nominated by the holders of at
least 150 shares of Class B-3 Common Stock, in the case of the Class B
Nominating Committee representing such class; provided, however, in the case
of any such nominations, the nomination is submitted in writing and
accompanied by a description of the proposed nominee's qualifications and
other relevant biographical information and evidence of the consent of the
proposed nominee. The five nominees receiving the greatest number of votes for
a particular Class B Nominating Committee shall be elected to such Committee.
In the event of a vacancy, howsoever occurring, in a committee position, the
candidate in the most recent election for such position who received the next
highest number of votes to the last person currently serving shall be named to
fill such vacancy.
Section 4.3 Director Nominations. Each Class B Nominating Committee
shall be responsible for assessing the qualifications of candidates to serve
as Directors to be elected by the particular class. Not less than 90 days but
not more than 120 days prior to an annual meeting of shareholders at which a
Class B-1 Director, a Class B-2 Director or a Class B-3 Director is to be
elected, the applicable Class B Nominating Committee(s) shall select nominees
for election to such directorship. Such Class B Nominating Committee(s) shall
select, subject to the provisions of the Certificate of Incorporation, two
nominees for each directorship to be filled by the applicable class of Class B
Common Stock at such meeting. Such nominations shall include, as part of or in
addition to such two nominees, (i) any nominee who is nominated by the holders
of at least 100 shares of Class B-1 Common Stock, in the case of the Class B
Nominating Committee representing such class, (ii) any nominee who is
nominated by the holders of at least 100 shares of Class B-2 Common Stock, in
the case of the Class B Nominating Committee representing such class, and
(iii) any nominee who is nominated by the holders of at least 150 shares of
Class B-3 Common Stock, in the case of the Class B Nominating Committee
representing such class; provided, however, in the case of any such
nominations, the nomination is submitted in writing and accompanied by a
description of the proposed nominee's qualifications and other relevant
biographical information and evidence of the consent of the proposed nominee.
All nominees shall meet the requirements, if any, in the Certificate of
Incorporation, in these Bylaws or in the Consolidated Rules of the Exchange
for service on the Board of Directors. No nominee shall be a candidate for
more than one directorship. If a nominee withdraws, dies, becomes
incapacitated or disqualified to serve, the applicable Class B Nominating
Committee shall, as quickly as practicable, submit a new nominee to the
Chairman of the Board. Each Class B Nominating Committee shall submit its
nominees in writing to the Chairman of the Board. Such writing shall set forth
as to each nominee for election or re-election as a Director: (1) the name,
age, business address and residence address of such person, (2) the principal
occupation or employment of such person, (3) the class and number of shares of
stock of the Corporation which are owned (or, under the rules of the
Corporation, would be recognized as a permitted transferee), and (4) such
person's written consent to serving as a Director if elected.
ARTICLE V
Board Officers; Executive Officers
Section 5.1 Board Officers; Executive Officers; Election;
Qualification; Term of Office. The Board of Directors shall elect from among
its members a Chairman of the Board, a Vice Chairman of the Board and a Second
Vice Chairman of the Board. The Board of Directors shall also elect a
President, a Secretary and a Treasurer, and may elect one or more Managing
Directors, one or more Assistant Secretaries and one or more Assistant
Treasurers. Any number of offices may be held by the same person. Each Board
officer and executive officer of the Corporation shall hold office until his
or her successor is elected and qualified or until his or her earlier death,
resignation or removal.
Section 5.2 Resignation; Removal; Vacancies. Any Board officer or
executive officer of the Corporation may resign at any time by giving written
notice to the Chairman of the Board, the President or the Secretary. Unless
otherwise stated in a notice of resignation, it shall take effect when
received by the Board officer or executive officer to whom it is directed,
without any need for its acceptance. Any resignation is without prejudice to
the rights, if any, of the Corporation under any contract to which such
officer is a party. The Board of Directors may remove any Board officer or
executive officer with or without cause at any time by an affirmative vote of
the majority of the Board of Directors, but such removal shall be without
prejudice to the contractual rights, if any, of such officer with the
Corporation. A vacancy occurring in any Board or executive office of the
Corporation may be filled for the unexpired portion of the term thereof by the
Board of Directors at any regular or special meeting.
Section 5.3 Powers and Duties of Board Officers and Executive
Officers. The Board officers and executive 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.
ARTICLE VI
Stock Certificates and Transfers
Section 6.1 Certificates; Uncertificated Shares. The shares of the
Corporation's stock shall be represented either by book entries on the
Corporation's books, if authorized by the Board of Directors, or by
certificates signed by, or in the name of the Corporation by its Chairman of
the Board, a Vice Chairman of the Board, its President or a Managing Director,
and may be countersigned by its Secretary or an Assistant Secretary,
certifying the number of shares owned by such shareholder in the Corporation.
Any of or all the signatures on a certificate may be 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 such officer, transfer
agent or registrar continued to be such at the date of issue. Upon the request
of the registered owner of uncertificated shares, the President or his
designee shall send to the registered owner a certificate representing such
shares.
In the case of uncertificated shares, within a reasonable time after
the issuance or transfer thereof, the President or his designee shall send to
the registered owner of shares of Common Stock of the Corporation a written
notice containing (i) (A) a full statement of the designations, relative
rights, preferences and limitations of the shares of the class and series
issued or transferred, so far as the same have been determined and the
authority of the Board of Directors to divide the shares into classes or
series and to determine and change the relative rights, preferences and
limitations of any class or series; or (B) a declaration that the Corporation
will furnish to the shareholder, upon request and without charge, a statement
containing the information described in the preceding clause (A); (ii) a
statement that the Corporation is organized under the laws of the State of
Delaware; (iii) the name of the person to whom the uncertificated shares have
been issued or transferred; (iv) the number and class of shares, and the
designation of the series, if any, to which such notice applies; and (v) any
restrictions on transfer of the shares, in accordance with Section 202 of the
Delaware General Corporation Law. The notice referred to in the preceding
sentence shall also contain the following statement: "This notice is merely a
record of the rights of the addressee as of the time of its issuance. Delivery
of this statement, of itself, confers no rights on the recipient. This notice
is neither a negotiable instrument nor a security."
Section 6.2 Lost, Stolen or Destroyed Certificates; Issuance of New
Certificates. The Corporation may issue a new certificate for stock in the
place of any certificate theretofore issued by it, alleged to have been lost,
stolen or destroyed, and the Corporation may require the owner of the lost,
stolen or destroyed certificate, or such shareholder's legal representative,
to indemnify the Corporation and/or to give the Corporation a bond sufficient
to indemnify it against any claim that may be made against it on account of
the alleged loss, theft or destruction of any such certificate or the issuance
of such new certificate.
Section 6.3 Transfers of Stock. Upon surrender to the Corporation or
the transfer agent of the Corporation of a certificate for stock of the
Corporation duly endorsed or accompanied by proper evidence of succession,
assignment or authority to transfer or, if the relevant stock certificate is
claimed to have been lost, stolen or destroyed, upon compliance with the
provisions of Section 6.2 of these Bylaws, and upon payment of applicable
taxes with respect to such transfer, and in compliance with the transfer
restrictions applicable to such shares under the Certificate of Incorporation,
these Bylaws or rules of the Corporation and any other applicable transfer
restrictions of which the Corporation shall have notice, the Corporation shall
issue a new certificate or certificates for such stock to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Transfers of stock shall be made only on the books of the Corporation by the
registered holder thereof or by such holder's attorney or successor duly
authorized as evidenced by documents filed with the Secretary. Whenever any
transfer of stock shall be made for collateral security, and not absolutely,
it shall be so expressed in the entry of transfer if, when the certificate or
certificates representing such stock are presented to the Corporation for
transfer, both the transferor and transferee request the Corporation to do so.
Section 6.4 Transfers of Uncertificated Stock. Except as otherwise
required by law, uncertificated shares of the Corporation's stock shall be
transferable in the manner prescribed in these Bylaws. Transfers of
uncertificated stock shall be made on the books of the Corporation only by the
person then registered on the books of the Corporation as the owner of such
shares or by such person's attorney lawfully constituted in writing and
written instruction to the Corporation containing the following information:
(i) the class of shares, and the designation of the series, if any, to which
such notice applies; (ii) the number of shares transferred; and (iii) the
name, address and taxpayer identification number, if any, of the party to whom
the shares have been transferred and who, as a result of such transfer, is to
become the new registered owner of the shares. No transfer of uncertificated
stock shall be valid as against the Corporation for any purpose until it shall
have been entered in the stock records of the Corporation by an entry showing
from and to whom transferred.
Section 6.5 Special Designation on Certificates. 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/or rights shall be set forth in full or
summarized on the face or back of the certificate that the Corporation shall
issue to represent such class or series of stock; provided, however, that,
except as otherwise provided in Section 202 of the General Corporation Law of
Delaware, in lieu of the foregoing requirements there may be set forth on the
face or back of the certificate that the Corporation shall issue to represent
such class or series of stock a statement that the Corporation will furnish
without charge to each shareholder who so requests the powers, designations,
preferences, and the 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/or rights.
Section 6.6 Stock Transfer Agreements. Subject to the provisions of
the Certificate of Incorporation, the Corporation shall have power to enter
into and perform any agreement with any number of shareholders of any one or
more classes, or series thereof, of stock of the Corporation to restrict the
transfer of such shares owned by such shareholders in any manner not
prohibited by the General Corporation Law of Delaware.
Section 6.7 Registered Shareholders. 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, shall
be entitled to hold liable for calls and assessments the 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 part of
another person, whether or not it shall have express or other notice thereof,
except as otherwise provided by the laws of Delaware.
Section 6.8 Other Regulations. The issue, transfer, conversion and
registration of stock certificates shall be governed by such other regulations
as the Board of Directors may establish.
ARTICLE VII
Notices
Section 7.1 Manner of Notice. Except as otherwise provided by law,
the Certificate of Incorporation or these Bylaws, whenever notice is required
to be given to any shareholder, Director or member of any committee of the
Board of Directors, such notice may be given by personal delivery or by
depositing it, in a sealed envelope, in the United States mails, first class,
postage prepaid, addressed, or by transmitting it via telecopier, to such
shareholder, Director or member, either at the address of such shareholder,
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 or transmitted, as the case may be. Such requirement for
notice shall also be deemed satisfied, except in the case of shareholder
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
Bylaws.
Section 7.2 Dispensation with Notice. (a) Whenever notice is required
to be given by law, the Certificate of Incorporation or these Bylaws to any
shareholder to whom (i) notice of two consecutive annual meetings of
shareholders, and all notices of meetings of shareholders 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 shareholder at the address of such shareholder as shown on
the records of the Corporation and have been returned undeliverable, the
giving of such notice to such shareholder shall not be required. Any action or
meeting which shall be taken or held without notice to such shareholder shall
have the same force and effect as if such notice had been duly given. If any
such shareholder shall deliver to the Corporation a written notice setting
forth the then current address of such shareholder, the requirement that
notice be given to such shareholder shall be reinstated.
(b) Whenever notice is required to be given by law, the Certificate
of Incorporation or these Bylaws 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 7.3 Waiver of Notice. 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
shareholders, Directors, or members of a committee of Directors need be
specified in any written waiver of notice.
ARTICLE VIII
Indemnification
Section 8.1 Right to Indemnification. In addition and subject to the
indemnification provisions contained in the Certificate of Incorporation, and
subject to applicable law, the following Sections of this Article VIII shall
apply with respect to any person subject to the indemnification provisions of
the Corporation.
Section 8.2 Prepayment of Expenses. The Corporation may pay or
reimburse the reasonable expenses incurred in defending any proceeding in
advance of its final disposition if the Corporation has received in advance an
undertaking by the person receiving such payment or reimbursement to repay all
amounts advanced if it should be ultimately determined that he or she is not
entitled to be indemnified under this Article VIII or otherwise. The
Corporation may require security for any such undertaking.
Section 8.3 Claims. If a claim for indemnification or payment of
expenses under this Article VIII is not paid in full within 60 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 8.4 Non-Exclusivity of Rights. The rights conferred on any
person by this Article VIII 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 Bylaws, agreement, vote of shareholders or
disinterested Directors or otherwise.
Section 8.5 Other Indemnification. 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 or other enterprise shall be reduced by any amount
such person may collect as indemnification from such other corporation,
partnership, joint venture or other enterprise.
Section 8.6 Amendment or Repeal. Any repeal or modification of the
foregoing provisions of this Article VIII 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 IX
General
Section 9.1 Form of Records. Any records maintained by the
Corporation in the regular course of its business, including its stock ledger,
books of account, and minute books, may be kept on, or be in the form of,
magnetic tape, diskette, photographs, microphotographs, or any other
information storage device, provided that the records so kept can be converted
into clearly legible form within a reasonable time. The Corporation shall so
convert any records so kept upon the request of any person entitled to inspect
the same.
Section 9.2 Execution of Corporate Contracts and Instruments. The
Board of Directors, except as otherwise provided in these Bylaws, may
authorize any officer or officers, or agent or agents, to enter into any
contract or execute any instrument in the name of and on behalf of the
Corporation; such authority may be general or confined to specific instances.
Unless so authorized or ratified by the Board of Directors or within the
agency power of an officer, no officer, agent or employee shall have any power
or authority to bind the Corporation by any contract or engagement or to
pledge its credit or to render it liable for any purpose or for any amount.
Section 9.3 Severability. If any provision of these Bylaws shall be
held to be invalid, illegal, unenforceable or in conflict with the provisions
of the Corporation's Certificate of Incorporation, then such provision shall
nonetheless be enforced to the maximum extent possible consistent with such
holding and the remaining provisions of these Bylaws (including without
limitation, all portions of any section of these Bylaws containing any such
provision held to be invalid, illegal, unenforceable or in conflict with the
Certificate of Incorporation, that are not themselves invalid, illegal,
unenforceable or in conflict with the Certificate of Incorporation) shall
remain in full force and effect.
Section 9.4 Construction; Definitions. Unless the context requires
otherwise, the general provisions, rules of construction, and definitions in
the General Corporation Law of Delaware shall govern the construction of these
Bylaws. Without limiting the generality of this provision, the singular number
includes the plural, the plural number includes the singular, and the term
"person" includes both a corporation and a natural person.
Section 9.5 Dividends. The Board of Directors, subject to any
restrictions contained in the General Corporation Law of Delaware or the
Certificate of Incorporation, may declare and pay dividends upon the shares of
its capital stock. Dividends may be paid only in cash or in property. The
Board of Directors may set apart out of any of the funds of the Corporation
available for dividends a reserve or reserves for any proper purpose and may
abolish any such reserve. Such purposes shall include, but not be limited to,
equalizing dividends, repairing or maintaining any property of the
Corporation, and meeting contingencies.