Exhibit 3.2
AMENDED AND RESTATED BYLAWS
OF
GENWORTH FINANCIAL, INC.
Article I.
Office
Section 1.1 Office. The principal executive office of this
corporation shall be in the county of Henrico in the Commonwealth of Virginia.
Article II.
Meetings of Stockholders
Section 2.1 Annual Meetings. If required by applicable law, an annual
meeting of stockholders shall be held for the election of directors at such
date, time and place, if any, either within or without the State of Delaware,
as may be designated by resolution of the Board of Directors from time to
time. Any other proper business may be
transacted at the annual meeting.
Section 2.2 Special Meetings. Special meetings of stockholders may be
called in the manner set forth in the Amended and Restated Certificate of
Incorporation.
Section 2.3 Notice of Meetings. Whenever stockholders are required or
permitted to take any action at a meeting, a notice of the meeting shall be
given that shall state the place, if any, date and hour 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 Amended and Restated Certificate of Incorporation or these bylaws, the
notice of any meeting shall be given not less than ten (10) nor more than sixty
(60) days before the date of the meeting to each stockholder entitled to vote
at such meeting. If mailed, such notice
shall be deemed to be given when deposited in the United States mail, postage
prepaid, directed to the stockholder at such stockholder’s address as it
appears on the records of the corporation.
Section 2.4 Adjournments. Any meeting of stockholders, annual or
special, may adjourn from time to time to reconvene at the same or some other
place, and, subject to the second succeeding sentence, notice need not be given
of any such adjourned meeting if the time, date and place thereof are announced
at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any
business which might have been transacted at the original meeting. If the adjournment is for more than thirty
(30) days, or if after the
adjournment a
new record date is fixed for the adjourned meeting, notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the
meeting.
Section 2.5 Quorum. Except as otherwise provided by law, the
Amended and Restated Certificate of Incorporation or these bylaws, at each
meeting of stockholders the presence in person or by proxy of the holders of a
majority in voting power of the outstanding shares of stock entitled to vote at
the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders
so present may, by a majority in voting power thereof, adjourn the meeting from
time to time in the manner provided in Section 2.4 of these bylaws until a
quorum shall attend. Shares of its own
stock belonging to the corporation or to another corporation, if a majority of
the shares entitled to vote in the election of directors of such other
corporation is held, directly or indirectly, by the corporation, shall neither
be entitled to vote nor be counted for quorum purposes; provided, however, that
the foregoing shall not limit the right of the corporation or any subsidiary of
the corporation to vote stock, including but not limited to its own stock, held
by it in a fiduciary capacity.
Section 2.6 Organization. Meetings of stockholders shall be presided
over by the Chairman of the Board, if any, or in his or her absence by the Vice
Chairman of the Board, if any, or in his or her absence by the President, or in
his or her absence by a Vice President, or in the absence of the foregoing
persons by a chairperson designated by the Board of Directors, or in the
absence of such designation, by a chairperson chosen at the meeting. The Secretary shall act as secretary of the
meeting, but in his or her absence the chairperson of the meeting may appoint
any person to act as secretary of the meeting.
Section 2.7 Voting; Proxies. Except as otherwise provided by or pursuant
to the provisions of the Amended and Restated Certificate of Incorporation,
each stockholder entitled to vote at any meeting of stockholders shall be
entitled to one vote for each share of stock held by such stockholder which has
voting power upon the matter in question.
Each stockholder entitled to vote at a meeting of stockholders or to
express consent to corporate action in writing without a meeting may authorize
another person or persons to act for such stockholder by proxy, but no such
proxy shall be voted or acted upon after three years from its date, unless the
proxy provides for a longer period. A
proxy shall be irrevocable if it states that it is irrevocable and if, and only
as long as, it is coupled with an interest sufficient in law to support an
irrevocable power. A stockholder may
revoke any proxy which is not irrevocable by attending the meeting and voting
in person or by delivering to the Secretary of the corporation a revocation of
the proxy or a new proxy bearing a later date.
Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the
election of directors at which a quorum is present a plurality of the votes
cast shall be sufficient to elect. All
other elections and questions presented to the stockholders at a meeting at
which a quorum is present shall, unless otherwise provided by the Amended and
Restated Certificate of Incorporation, these bylaws, the rules or regulations
of any stock exchange applicable to the corporation, or applicable law or
pursuant to any regulation applicable to the corporation or its securities, be
decided by the affirmative vote of the holders of a majority in voting power of
the shares of stock of the corporation which are present in person or by proxy
and entitled to vote thereon.
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Section 2.8 Fixing Date for
Determination of Stockholders of Record.
In order that the corporation may determine the stockholders entitled to
notice of or to vote at any meeting of stockholders or any adjournment thereof,
or to express consent to corporate action in writing without a meeting, or
entitled to receive payment of any dividend or other distribution or allotment
of any rights, or entitled to exercise any rights in respect of any change,
conversion or exchange of stock or for the purpose of any other lawful action,
the Board of Directors may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted by
the Board of Directors, and which record date:
(1) in the case of determination of stockholders entitled to vote
at any meeting of stockholders or adjournment thereof, shall, unless otherwise
required by law, not be more than sixty (60) nor less than ten (10) days before
the date of such meeting; (2) in the case of determination of stockholders
entitled to express consent to corporate action in writing without a meeting,
shall not be more than ten (10) days from the date upon which the resolution
fixing the record date is adopted by the Board of Directors; and (3) in
the case of any other action, shall not be more than sixty (60) days prior to
such other action. If no record date is
fixed: (1) 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; (2) the
record date for determining stockholders entitled to express consent to
corporate action in writing without a meeting, when no prior action of the
Board of Directors is required by law, shall be the first date on which a
signed written consent setting forth the action taken or proposed to be taken
is delivered to the corporation in accordance with applicable law, or, if prior
action by the Board of Directors is required by law, shall be at the close of
business on the day on which the Board of Directors adopts the resolution
taking such prior action; and (3) the record date for determining
stockholders for any other purpose shall be at the close of business on the day
on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to
any adjournment of the meeting; provided, however, that the Board of Directors
may fix a new record date for the adjourned meeting.
Section 2.9 List of
Stockholders Entitled to Vote. The
officer who has charge of the stock ledger shall prepare and make, at least ten
(10) days before every meeting of stockholders, a complete list of the
stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered
in the name of each stockholder. Such
list shall be open to the examination of any stockholder, for any purpose
germane to the meeting at least ten (10) days prior to the meeting (i) on a
reasonably accessible electronic network, provided that the information
required to gain access to such list is provided with the notice of meeting or
(ii) during ordinary business hours at the principal place of business of the
corporation. The list of stockholders
must also be open to examination at the meeting as required by applicable law.
Section 2.10 Action By Written
Consent of Stockholders. Except as
otherwise restricted by the Amended and Restated Certificate of Incorporation,
any action required or permitted to be taken at any annual or special meeting
of the stockholders may be taken without a meeting, without prior notice and
without a vote, if a consent or consents in writing, setting forth the action
so taken, shall be signed by the holders of outstanding stock having not less
than
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the minimum
number of votes that would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote thereon were present and voted and
shall be delivered to the corporation by delivery to its registered office in
the State of Delaware, its principal place of business, or an officer or agent
of the corporation having custody of the book in which minutes of proceedings
of stockholders are recorded. Delivery
made to the corporation’s registered office shall be by hand or by certified or
registered mail, return receipt requested.
Prompt notice of the taking of the corporate action without a meeting by
less than unanimous written consent shall, to the extent required by law, be
given to those stockholders who have not consented in writing and who, if the
action had been taken at a meeting, would have been entitled to notice of the
meeting if the record date for such meeting had been the date that written
consents signed by a sufficient number of holders to take the action were
delivered to the corporation.
Section 2.11 Inspectors of
Election. The corporation may, and
shall if required by law, in advance of any meeting of stockholders, appoint
one or more inspectors of election, who may (unless otherwise required by
applicable law) be employees of the corporation, to act at the meeting or any
adjournment thereof and to make a written report thereof. The corporation may designate one or more
persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed
or designated is able to act at a meeting of stockholders, the person presiding
at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the
discharge of his or her duties, shall take and sign an oath to execute
faithfully the duties of inspector with strict impartiality and according to
the best of his or her ability. The
inspector or inspectors so appointed or designated shall (i) ascertain the
number of shares of capital stock of the corporation outstanding and the voting
power of each such share, (ii) determine the shares of capital stock of the
corporation represented at the 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 shares
of capital stock of the corporation represented at the meeting and such
inspectors’ count of all votes and ballots. Such certification and report shall
specify such other information as may be required by law. In determining the validity and counting of
proxies and ballots cast at any meeting of stockholders of the corporation, the
inspectors may consider such information as is permitted by applicable
law. No person who is a candidate for
an office at an election may serve as an inspector at such election.
Section 2.12 Conduct of Meetings. The date and time of the opening and the
closing of the polls for each matter upon which the stockholders will vote at a
meeting shall be announced at the meeting by the person presiding over the
meeting. The Board of Directors may
adopt by resolution such rules and regulations for the conduct of the meeting
of stockholders as it shall deem appropriate.
Except to the extent inconsistent with such rules and regulations as
adopted by the Board of Directors, the person presiding over any meeting of
stockholders shall have the right and authority to convene the meeting, to
prescribe such rules, regulations and procedures and to do all such acts as, in
the judgment of such presiding person, are appropriate for the proper conduct
of the meeting. Such rules, regulations
or procedures, whether adopted by the Board of Directors or prescribed by the
presiding person of the meeting, may include, without limitation, the
following: (i) the establishment of an agenda or order of business for the
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meeting; (ii)
rules and procedures for maintaining order at the meeting and the safety of
those present; (iii) limitations on attendance at or participation in the
meeting to stockholders of record of the corporation, their duly authorized and
constituted proxies or such other persons as the presiding person of the
meeting shall determine; (iv) restrictions on entry to the meeting after the
time fixed for the commencement thereof; and (v) limitations on the time
allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition
to making any other determinations that may be appropriate to the conduct of
the meeting, shall, if the facts warrant, determine and declare to the meeting
that a matter or business was not properly brought before the meeting and if
such presiding person should so determine, such presiding person shall so
declare to the meeting and any such matter or business not properly brought
before the meeting shall not be transacted or considered. Unless and to the extent determined by the
Board of Directors or the person presiding over the meeting, meetings of
stockholders shall not be required to be held in accordance with the rules of
parliamentary procedure.
Section 2.13 Notice of
Stockholder Business and Nominations.
(a) Annual
Meetings of Stockholders. (1) Except for
nominations or elections of persons for election to the Board of Directors made
by the holder of the Class B Common Stock pursuant to Article VII of the
Amended and Restated Certificate of Incorporation and as may otherwise be
required by applicable law, nominations of persons for election to the Board of
Directors of the corporation and the proposal of business to be considered by
the stockholders may be made at an annual meeting of stockholders only (A)
pursuant to the corporation’s notice of meeting (or any supplement thereto),
(B) by or at the direction of the Board of Directors or (C) by any stockholder
of the corporation who was a stockholder of record of the corporation at the
time the notice provided for in this Section 2.13 is delivered to the Secretary
of the corporation, who is entitled to vote at the meeting and who complies
with the notice procedures set forth in this Section 2.13.
(2) For
nominations or other business to be properly brought before an annual meeting
by a stockholder pursuant to clause (C) of paragraph (a)(1) of this Section
2.13, the stockholder must have given timely notice thereof in writing to the
Secretary of the corporation and any such proposed business other than the
nominations of persons for election to the Board of Directors must constitute a
proper matter for stockholder action.
To be timely, a stockholder’s notice shall be delivered to the Secretary
at the principal executive offices of the corporation not later than the close
of business on the ninetieth day nor earlier than the close of business on the
one hundred twentieth day prior to the first anniversary of the preceding
year’s annual meeting (provided, however, that in the event that the date of
the annual meeting is more than thirty days before or more than seventy days
after such anniversary date, notice by the stockholder must be so delivered not
earlier than the close of business on the one hundred twentieth day prior to
such annual meeting and not later than the close of business on the later of
the ninetieth day prior to such annual meeting or the tenth day following the
day on which public announcement of the date of such meeting is first made by
the corporation). In no event shall the
public announcement of an adjournment or postponement of an annual meeting
commence a new time period (or extend any time period) for the giving of a
stockholder’s notice as described above.
Such stockholder’s notice shall set forth: (A) as to each person whom
the stockholder proposes to nominate for election as a director (i) all
information relating to such person that is
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required to be disclosed in solicitations of
proxies for election of directors in an election contest, or is otherwise
required, in each case pursuant to and in accordance with Regulation 14A under
the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and (ii)
such person’s written consent to being named in the proxy statement as a
nominee and to serving as a director if elected; (B) as to any other business
that the stockholder proposes to bring before the meeting, a brief description
of the business desired to be brought before the meeting, the text of the
proposal or business (including the text of any resolutions proposed for consideration
and in the event that such business includes a proposal to amend the bylaws of
the corporation, the language of the proposed amendment), the reasons for
conducting such business at the meeting and any material interest in such
business of such stockholder and the beneficial owner, if any, on whose behalf
the proposal is made; and (C) as to the stockholder giving the notice and the
beneficial owner, if any, on whose behalf the nomination or proposal is made
(i) the name and address of such stockholder, as they appear on the
corporation’s books, and of such beneficial owner, (ii) the class and number of
shares of capital stock of the corporation which are owned beneficially and of
record by such stockholder and such beneficial owner, (iii) a representation
that the stockholder is a holder of record of stock of the corporation entitled
to vote at such meeting and intends to appear in person or by proxy at the
meeting to propose such business or nomination, and (iv) a representation
whether the stockholder or the beneficial owner, if any, intends or is part of
a group which intends (a) to deliver a proxy statement and/or form of proxy to
holders of at least the percentage of the corporation’s outstanding capital
stock required to approve or adopt the proposal or elect the nominee or (b)
otherwise to solicit proxies from stockholders in support of such proposal or
nomination. The foregoing notice
requirements shall be deemed satisfied by a stockholder if the stockholder has
notified the corporation of his or her intention to present a proposal at an
annual meeting in compliance with Rule 14a-8 (or any successor thereof)
promulgated under the Exchange Act and such stockholder’s proposal has been
included in a proxy statement that has been prepared by the corporation to
solicit proxies for such annual meeting.
The corporation may require any proposed nominee to furnish such other
information as it may reasonably require to determine the eligibility of such
proposed nominee to serve as a director of the corporation.
(3) Notwithstanding
anything in the second sentence of paragraph (a)(2) of this Section 2.13 to the contrary, in the event that the
number of directors to be elected to the Board of Directors of the corporation
at an annual meeting is increased and there is no public announcement by the
corporation naming the nominees for the additional directorships at least one
hundred days prior to the first anniversary of the preceding year’s annual
meeting, a stockholder’s notice required by this Section 2.13 shall also be
considered timely, but only with respect to nominees for the additional
directorships, if it shall be delivered to the Secretary at the principal
executive offices of the corporation not later than the close of business on
the tenth day following the day on which such public announcement is first made
by the corporation.
(b) Special
Meetings of Stockholders. Only such
business shall be conducted at a special meeting of stockholders as shall have
been brought before the meeting pursuant to the corporation’s notice of
meeting. Nominations of persons for
election to the Board of Directors may be made at a special meeting of
stockholders at which directors are to be elected pursuant to the corporation’s
notice of meeting (1) by or at the direction of the Board of Directors or (2)
provided that the Board of Directors has determined that directors shall be
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elected at
such meeting, by any stockholder of the corporation who is a stockholder of
record at the time the notice provided for in this Section 2.13 is delivered to the Secretary of the
corporation, who is entitled to vote at the meeting and upon such election and
who complies with the notice procedures set forth in this Section 2.13. In the event the corporation calls a special
meeting of stockholders for the purpose of electing one or more directors to
the Board of Directors, any such stockholder entitled to vote in such election
of directors may nominate a person or persons (as the case may be) for election
to such position(s) as specified in the corporation’s notice of meeting, if the
stockholder’s notice required by paragraph (a)(2) of this Section 2.13 shall be
delivered to the Secretary at the principal executive offices of the corporation
not earlier than the close of business on the one hundred twentieth day prior
to such special meeting and not later than the close of business on the later
of the ninetieth day prior to such special meeting or the tenth day following
the day on which public announcement is first made of the date of the special
meeting and of the nominees proposed by the Board of Directors to be elected at
such meeting. In no event shall the
public announcement of an adjournment or postponement of a special meeting
commence a new time period (or extend any time period) for the giving of a
stockholder’s notice as described above.
(c) General. (1) Only such persons who are nominated in
accordance with the procedures set forth in this Section 2.13 or the Amended
and Restated Certificate of Incorporation shall be eligible to be elected at an
annual or special meeting of stockholders of the corporation to serve as
directors and only such business shall be conducted at a meeting of
stockholders as shall have been brought before the meeting in accordance with
the procedures set forth in this Section 2.13.
Except as otherwise provided by law, the chairman of the meeting shall
have the power and duty (a) to determine whether a nomination or any business
proposed to be brought before the meeting was made or proposed, as the case may
be, in accordance with the procedures set forth in this Section 2.13 (including
whether the stockholder or beneficial owner, if any, on whose behalf the
nomination or proposal is made solicited (or is part of a group which
solicited) or did not so solicit, as the case may be, proxies in support of
such stockholder’s nominee or proposal in compliance with such stockholder’s
representation as required by clause (a)(2)(C)(iv) of this Section 2.13) and
(b) if any proposed nomination or business was not made or proposed in
compliance with this Section 2.13, to declare that such nomination shall be
disregarded or that such proposed business shall not be transacted. Notwithstanding the foregoing provisions of
this Section 2.13, if the stockholder (or a qualified representative of the
stockholder) does not appear at the annual or special meeting of stockholders
of the corporation to present a nomination or business, such nomination shall
be disregarded and such proposed business shall not be transacted,
notwithstanding that proxies in respect of such vote may have been received by
the corporation.
(2) For
purposes of this Section 2.13, “public announcement” shall include disclosure
in a press release reported by the Dow Jones News Service, Associated Press or
comparable national news service or in a document publicly filed by the
corporation with the Securities and Exchange Commission pursuant to Section 13,
14 or 15(d) of the Exchange Act.
(3) Notwithstanding
the foregoing provisions of this Section 2.13, a stockholder shall also comply
with all applicable requirements of the Exchange Act and the rules and
regulations thereunder with respect to the matters set forth in this Section
2.13. Nothing in
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this Section
2.13 shall be deemed to affect any rights (a) of stockholders to request
inclusion of proposals in the corporation’s proxy statement pursuant to Rule
14a-8 under the Exchange Act or (b) of the holders of any series of Preferred
Stock to elect directors pursuant to any applicable provisions of the Amended
and Restated Certificate of Incorporation.
Article III.
Board of Directors
Section 3.1 Number;
Qualifications. The Board of
Directors shall consist of not less than one nor more than fifteen members, the
number thereof to be determined from time to time subject to the provisions of,
and in the manner specified in, the Amended and Restated Certificate of
Incorporation. Directors need not be
stockholders.
Section 3.2 Election;
Resignation; Vacancies. The Board
of Directors shall initially consist of the persons named as directors in the
certificate of incorporation or elected by the incorporator of the corporation,
and each director so elected shall hold office until the first annual meeting
of stockholders or until his or her successor is duly elected and qualified,
subject to such director’s earlier death, resignation, disqualification or
removal. At the first annual meeting of
stockholders and at each annual meeting thereafter, members of the Board of
Directors shall be elected in the manner set forth in the Amended and Restated
Certificate of Incorporation, each of whom shall hold office until the next
annual meeting of stockholders or until his or her successor is duly elected
and qualified, subject to such director’s earlier death, resignation,
disqualification or removal. Any
director may resign at any time upon notice to the corporation. Unless otherwise provided by law, any newly
created directorship or any vacancy occurring in the Board of Directors for any
cause shall be filled in the manner set forth in the Amended and Restated
Certificate of Incorporation, and each director so elected shall hold office
until the expiration of the term of office of the director whom he or she has
replaced or until his or her successor is elected and qualified.
Section 3.3 Regular Meetings. Regular meetings of the Board of Directors
may be held at such places within or without the State of Delaware and at such
times as the Board of Directors may from time to time determine.
Section 3.4 Special Meetings. Special meetings of the Board of Directors
may be held at any time or place within or without the State of Delaware
whenever called by the President, any Vice President, the Secretary, or by any
member of the Board of Directors.
Notice of a special meeting of the Board of Directors shall be given, in
accordance with Section 9.3 hereof, by the person or persons calling the
meeting at least twenty-four hours before the special meeting.
Section 3.5 Telephonic
Meetings Permitted. Members of the
Board of Directors, or any committee designated by the Board of Directors, may
participate in a meeting thereof by means of conference telephone or other
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting pursuant to this
by-law shall constitute presence in person at such meeting.
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Section 3.6 Quorum; Vote
Required for Action. Subject to the
Amended and Restated Certificate of Incorporation, at all meetings of the Board
of Directors the directors entitled to cast a majority of the votes of the
whole Board of Directors shall constitute a quorum for the transaction of
business. Except in cases in which the
Amended and Restated Certificate of Incorporation, these bylaws or applicable
law otherwise provides, a majority of the votes entitled to be cast by the
directors present at a meeting at which a quorum is present shall be the act of
the Board of Directors.
Section 3.7 Organization. Meetings of the Board of Directors shall be
presided over by the Chairman of the Board, if any, or in his or her absence by
the Vice Chairman of the Board, if any, or in his or her absence by the
President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the
meeting, but in his or her absence the chairperson of the meeting may appoint
any person to act as secretary of the meeting.
Section 3.8 Action by
Unanimous Consent of Directors.
Unless otherwise restricted by the Amended and Restated 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 or by electronic
transmission and the writing or writings or electronic transmissions are filed
with the minutes of proceedings of the board or committee.
Article IV.
Committees
Section 4.1 Committees. The Board of Directors may, subject to the
provisions of the Amended and Restated Certificate of Incorporation, designate
one or more committees, each committee to consist of one or more of the
directors of the corporation. The Board
of Directors may designate one or more directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting of
the committee. In the absence or
disqualification of a member of the committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he, she
or they constitute a quorum, may unanimously appoint another member of the
Board of Directors to act at the meeting in place of any such absent or
disqualified member. Any such
committee, to the extent permitted by law and to the extent provided in the
resolution of the Board of Directors, shall have and may exercise all the
powers and authority of the Board of Directors in the management of the
business and affairs of the corporation, and may authorize the seal of the
corporation to be affixed to all papers which may require it.
Section 4.2 Nominating Committee. At any time when GE shall beneficially own
more than fifty percent (50%) of the outstanding shares of common stock of the
corporation, the nominating committee shall present nominations for election to
the Board of Directors directly to the stockholders. At any time when GE shall beneficially own fifty percent (50%) or
less of the outstanding shares of common stock of the corporation, the
nominating committee shall propose nominees directly to the Board of Directors. “GE” means General Electric
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Company, a New
York corporation, all successors to General Electric Company by way of merger,
consolidation or sale of all or substantially all of its assets, and all
corporations, limited liability companies, joint ventures, partnerships,
trusts, associations and other entities in which General Electric Company (a)
beneficially owns, either directly or indirectly, more than fifty percent (50%)
of (i) the total combined voting power of all classes of voting securities of
such entity, (ii) the total combined equity interests, or (iii) the capital or
profit interests, in the case of a partnership; or (b) otherwise has the power
to vote, either directly or indirectly, sufficient securities to elect a
majority of the board of directors or similar governing body, but shall not
include the corporation or any of its subsidiaries.
Section 4.3 Committee Rules. Unless the Board of Directors otherwise
provides, each committee designated by the Board of Directors may make, alter
and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its
business in the same manner as the Board of Directors conducts its business
pursuant to Article III of these bylaws.
Article V.
Officers
Section 5.1 Officers. As determined by the Board of Directors, the
officers of this corporation shall include the officers set forth in this
Article V.
Section 5.2 Chairman. A Chairman of the Board, who shall be chosen
by the Directors from their own number. The Chairman of the Board shall be the
Chief Executive Officer of the corporation and in that capacity shall have
general management, subject to the control of the Board of Directors, of the
business of the corporation, including the appointment of all officers and
employees of the corporation for whose election or appointment no other
provisions is made in these bylaws; he shall also have the power, at any time,
to discharge or remove any officer or employee of the corporation, subject to
the action thereon of the Board of Directors, and shall perform all other
duties appropriate to this office. The Chairman of the Board shall preside at
all meetings of Directors, and he may at any time call any meeting of the Board
of Directors; he may also at his discretion call or attend any meeting of any
committee of the Board, whether or not a member of such committee.
Section 5.3 President. A President of the corporation, who shall be
chosen by the Directors from their own number. The office of President will
normally be vested in the Chairman of the Board, provided, however, that in the
discretion of the Board of Directors, the position of President may be
established independent of, but accountable to, the Chairman during transition
periods.
Section 5.4 Vice President. Two or more Vice Presidents, one or more of
whom may also be designated Executive Vice Presidents or Senior Vice Presidents
accountable to the Chief Executive Officer.
Section 5.5 Chief Financial
Officer. A Chief Financial Officer,
who shall be the principal financial officer of the corporation, and who shall
have such duties as the Board of
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Directors, by
resolution, shall determine. In the absence or disability of the Chief Financial
Officer, the Chairman of the Board may designate a person to exercise the
powers of such office.
Section 5.6 Controller and
Treasurer. A Controller and a
Treasurer who shall be officers of the corporation. The Treasurer and
Controller shall perform such duties as may be assigned by the Chief Financial
Officer. In the absence or disability
of the Controller or Treasurer, the Chairman of the Board may designate a
person to execute the powers of such office.
Section 5.7 Secretary. A Secretary, who shall record in proper
books to be kept for that purpose and have custody of the minutes of the
meetings of the shareholders of the corporation and of meetings of the Board of
Directors and of committees of the Board of Directors (other than the
Compensation Committee) and who shall be responsible for the custody and care
of the seal of the corporation. He
shall attend to the giving and serving of all notices of the corporation and
perform such other duties as may be imposed upon him by the Board of Directors.
Section 5.8 Assistant
Secretary and Attesting Secretaries.
The Secretary may appoint an Assistant Secretary and Attesting
Secretaries, each of whom shall have the power to affix and attest the
corporate seal of the corporation, and to attest the execution of documents on
behalf of the corporation and who shall perform such other duties as may be
assigned by the Secretary; and in the absence or disability of the Secretary,
the Assistant Secretary may be designated by the Chairman to exercise the
powers of the Secretary.
Section 5.9 Other Officers. Such other officers as the Board of
Directors may from time to time appoint.
One person may hold two or more offices, except that no person shall
simultaneously hold the offices of President and Secretary.
Section 5.10 Election. All officers shall be elected by the Board
of Directors for an initial term which shall continue until the first meeting
of the Board of Directors following the next annual statutory meeting of
shareholders, and thereafter all officers shall be elected for one-year terms;
provided, however, that all officers shall serve at the pleasure of the Board
of Directors. Officers shall exercise such powers and perform such duties as
the Chief Executive Officer may from time to time direct, provided that these
powers and duties are not inconsistent with any outstanding resolutions of the
Board of Directors.
Section 5.11 Incapacity. In the event of the absence, incapacity,
illness or the death of the Chairman of the Board, the President, if then a
separate officer, shall assume the duties of the Chairman of the Board pending
action by the Board of Directors; provided, however, that if there is not a
separate President in office, the duties of the Chairman of the Board, pending
action by the Board of Directors, shall be assumed by that Vice Chairman who is
senior to the others in length of corporation service.
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Article VI.
Removal of Officers and Employees
Section 6.1 Removal. Except as otherwise provided in the Amended
and Restated Certificate of Incorporation, any officer or employee of the
corporation may, at any time, be removed by the affirmative vote of at least a
majority of the Board of Directors. In case of such removal the officer so removed
shall forthwith deliver all the property of the corporation in his possession,
or under his control, to some person to be designated by the Board of
Directors. Nothing herein contained shall limit the power of any officer to
discharge any subordinate.
Section 6.2 Temporary
Delegation. The Board of Directors
may at any time, in the transaction of business, temporarily delegate any of
the duties of any officer to any other officer or person selected by it.
Section 6.3 Vacancies. Any vacancy occurring in any office, may be
filled for the unexpired term by the Board of Directors.
Article VII.
Stock
Section 7.1 Certificates. Every holder of stock shall be entitled to
have a certificate signed by or in the name of the corporation by the Chairman
or Vice Chairman of the Board of Directors, if any, or the President or a Vice
President, and by the Treasurer or an Assistant Treasurer, or the Secretary or
an Assistant Secretary, of the corporation certifying the number of shares
owned by such holder in the corporation.
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 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 person were such officer, transfer agent, or registrar
at the date of issue.
Section 7.2 Lost, Stolen or
Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate
of 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 owner’s legal
representative, 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.
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Article VIII.
Miscellaneous
Section 8.1 Fiscal Year. The fiscal year of the corporation shall be
determined by resolution of the Board of Directors.
Section 8.2 Seal. The corporate seal shall have the name of
the corporation inscribed thereon and shall be in such form as may be approved
from time to time by the Board of Directors.
Section 8.3 Manner of Notice. Except as otherwise provided herein or
permitted by applicable law, notices to directors and stockholders shall be in
writing and delivered personally or mailed to the directors or stockholders at
their addresses appearing on the books of the corporation. Notice to directors may be given by
telecopier, telephone or other means of electronic transmission.
Section 8.4 Waiver of Notice
of Meetings of Stockholders, Directors and Committees. Any waiver of notice, given by the person
entitled to notice, whether before or after the time stated therein, shall be
deemed equivalent to notice. Attendance
of a person at a meeting shall constitute a waiver of notice of such meeting,
except when the person attends a meeting for the express purpose of objecting,
at the beginning of the meeting, to the transaction of any business because the
meeting is not lawfully called or convened.
Neither the business to be transacted at nor the purpose of any regular
or special meeting of the stockholders, directors, or members of a committee of
directors need be specified in a waiver of notice.
Section 8.5 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 by means of, or be in the form
of, any information storage device or method, provided that the records so kept
can be converted into clearly legible paper form within a reasonable time.
Section 8.6 Amendment of
By-Laws. These bylaws may be
altered, amended or repealed, at any time, in the manner provided in the
Amended and Restated Certificate of Incorporation of this corporation.
Article IX.
Emergency By-law
Section 9.1 Effective Time. This Emergency By-law shall become effective
if a state of national emergency is declared by the government of the United
States and shall cease to be effective when the government of the United States
shall declare that the state of national emergency no longer exists. This
Emergency By-law may also become effective in the manner outlined in Section
9.5 of this Article.
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Section 9.2 Management. In the event this Emergency By-law shall
become effective, the business of the corporation shall continue to be managed
by those members of the Board of Directors in office at the time the emergency
arises who are available to act during the emergency. If less than three such
Directors are available to act, additional Directors, in whatever number is
necessary to constitute a Board of three Directors, shall be selected automatically
from the first available officers or employees in the order provided in the
emergency succession list established by the Board of Directors and in effect
at the time an emergency arises.
Section 9.3 Unavailability of
Directors. For the purposes of
Sections 9.2 and 9.4(c) of this Article, a Director shall be deemed unavailable
to act if he shall fail to attend a Directors meeting called in the manner
provided in Section 9.4(a) of this Article. This section, however, shall not
affect in any way the right of a Director in office at the time an emergency
arises to continue as a Director.
Section 9.4 Procedures. The Board of Directors shall be governed by
the following basic procedures and shall have the following specific powers in
addition to all other powers which it would otherwise have.
(a) Meetings
of the Board of Directors may be called by any Director, or by the first
available officer or employee in the order provided in the emergency succession
list referred to in Section 9.2 of this Article, notice of any meeting of the
Board of Directors during such an emergency may be given only to such of the
Directors as it may be feasible to reach at the time and by such means as may
be feasible at the time, including publication or radio.
(b) Three
Directors shall constitute a quorum which may in all cases act by majority
vote.
(c) If
the number of Directors who are available to act shall drop below three,
additional Directors, in whatever number is necessary to constitute a Board of
three Directors, shall be selected automatically from the first available
officers or employees in the order provided in the emergency succession list
referred to in Section 9.2 of this Article.
(d) Additional
Directors, beyond the minimum number of three Directors, but not more than
three additional Directors, may be elected from any officers or employees on
the emergency succession list referred to in Section 9.2 of this Article.
(e) The
Board of Directors may establish any additional procedures and may amend any of
the provisions of this Article concerning the interim management of the affairs
of the corporation in an emergency if it considers it to be in the best
interests of the corporation to do so, except that it may not change Sections
9.3 or 9.4(e) of this Article in any manner which excludes from participation
any person who was a Director in office at the time an emergency arises.
(f) To
the extent that it considers it practical to do so, the Board of Directors
shall manage the business of the corporation during an emergency in a manner
which
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is consistent
with the Amended and Restated Certificate of Incorporation and bylaws. It is
recognized, however, that in an emergency it may not always be practical to act
in this manner and this Emergency By-law is intended to and hereby empowers the
Board of Directors with the maximum authority possible under the General
Corporation Law of the State of Delaware, and all other applicable law, to
conduct the interim management of the affairs of the corporation in an
emergency in what it considers to be in the best interests of the corporation.
Section 9.5 Obvious Emergency. If an obvious defense emergency exists
because of an enemy attack and, if by reason of the emergency, the government
of the United States is itself unable to declare a state of national emergency
as contemplated by Section 9.1 of this Article, then:
(a) A
quorum of the Board of Directors pursuant to Article III of these bylaws may
order the effectiveness of this Emergency By-law; or
(b) If
a quorum of the Board of Directors pursuant to Article III of these bylaws is
not present at the first Board of Directors meeting called, in the manner
provided in Section 9.4(a) of this Article, after an emergency arises, then the
provisions of this Emergency By-law shall automatically become effective and
shall remain in effect until it is practical for a normally constituted Board
of Directors to resume management of the business of the corporation.
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