BYLAWS
OF
WESTWOOD ONE, INC.
(A Delaware Corporation)
As Amended and Restated
ARTICLE I
OFFICES
Section 1.01. REGISTERED OFFICE. The registered office of
Westwood One, Inc. (the "Corporation") in the State of Delaware
shall be located at Corporation Trust Center, 1209 Orange Street,
City of Wilmington, County of New Castle, and the name of the
registered agent at that address shall be The Corporation Trust
Company.
Section 1.02. PRINCIPAL EXECUTIVE OFFICE. The principal
executive office of the Corporation shall be located at 9540
Washington Boulevard, Culver City, California 90232. The Board of
Directors of the Corporation (the "Board of Directors") may change
the location of said principal executive office.
Section 1.03. OTHER OFFICES. The Corporation may also have
an officer or offices at such other place or places, either within
or without the State of Delaware, as the Board of Directors may
from time to time determine or as the business of the Corporation
may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 2.01. ANNUAL MEETINGS. The annual meeting of
stockholders of the Corporation shall be held between May 1 and
August 30 of each year on such date at such time as the Board of
Directors shall determine. At each annual meeting of
stockholders, directors shall be elected in accordance with the
provisions of Section 3.04 hereof and any other proper business
may be transacted.
Section 2.02. SPECIAL MEETINGS. Special meetings of
stockholders for any purpose or purposes may be called at any time
by a majority of the Board of Directors or by the Chairman of the
Board. Special meetings may not be called by any other person or
persons. Each special meeting shall be held at such date and time
as is requested by the person or persons calling the meeting, with
the limits fixed by law.
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Section 2.03. PLACE OF MEETINGS. Each annual or special
meeting of stockholders shall be held at such location as may be
determined by the Board of Directors or, if no such determination
is made, at such place as may be determined by the Chairman of the
Board. If no location is so determined, any annual or special
meeting shall be held at the principal executive office of the
Corporation.
Section 2.04. NOTICE OF MEETINGS. Written notice of each
annual or special meeting of stockholders stating the date and
time when, and the place where, it is to be held shall be
delivered either personally or by mail to stockholders entitled to
vote at such meeting not less than ten (10) nor more than sixty
(60) days before the date of the meeting. The purpose or purposes
for which the meeting is called may, in the case of an annual
meeting, and shall, in the case of a special meeting, also be
stated. If mailed, such notice shall be directed to a stockholder
at his address as it shall appear on the stock books of the
Corporation, unless he shall have filed with the Secretary of the
Corporation a written request that notices intended for him be
mailed to some other address, in which case such notice shall be
mailed to the address designated in such request. When a meeting
is adjourned to another time or place, notice need not be given of
the adjourned meeting if the time 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 days, or if after the
adjournment a new record date is fixed for the adjourned meeting,
a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
Section 2.05. CONDUCT OF MEETINGS. All annual and special
meetings of stockholders shall be conducted in accordance with
such rules and procedures as the Board of Directors may determine
subject to the requirements of applicable law, and as to matters
not governed by such rules and procedures, as the chairman of such
meetings shall determine. The chairman of any annual or special
meetings of stockholders shall be the Chairman of the Board. The
Secretary, or in the absence of the Secretary, a person designated
by the Chairman of the Board, shall act as secretary of the
meeting.
Section 2.06. QUORUM. At any meeting of stockholders, the
presence, in person or by proxy, of the holders of record of
shares then issued and outstanding and entitled to vote
representing a majority of the votes eligible to be cast at the
meeting shall constitute a quorum for the transaction of business;
provided, however, that this Section 2.06 shall not affect any
different requirement which may exist under statute, pursuant to
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the rights of any authorized class or series of stock, or under
the Certificate of Incorporation of the Corporation (the
"Certificate") for the vote necessary for the adoption of any
measure governed thereby. In the absence of a quorum, the
stockholders present in person or by proxy, by majority vote and
without further notice, may adjourn the meeting from time to time
until a quorum is attained. At any reconvened meeting following
such an adjournment at which a quorum shall be present, any
business may be transacted which might have been transacted at the
meeting as originally notified.
Section 2.07. VOTES REQUIRED. A majority of the votes cast
at a duly called meeting of stockholders, at which a quorum is
present, shall be sufficient to take or authorize action upon any
matter which may properly come before the meeting, unless the vote
of greater or different number thereof is required by statue, by
the rights of any authorized class of stock or by the Certificate.
Unless the Certificate or the resolution of the Board of Directors
adopted in connection with the issuance of shares of any class or
series of stock provides for a greater or lesser number of votes
per share, or limits or denies voting rights, each outstanding
share of stock, regardless of class, shall be entitled to one vote
on each matter submitted to a vote of meeting of stockholders.
Section 2.08. CUMULATIVE VOTING. Except as otherwise
provided by applicable law, there shall be no cumulative voting
permitted in the election of Directors, or any other matter
brought before the stockholders.
Section 2.09. PROXIES. A stockholder may vote the shares
owned of record by him either in person or by proxy executed in
writing (which shall include writings sent by telex, telegraph,
cable or facsimile transmission) by the stockholder himself or by
his duly authorized attorney-in-fact. No proxy shall be valid
after three (3) years from its date, unless the proxy provides for
a longer period. Each proxy shall be in writing, subscribed by
the stockholder or his duly authorized attorney-in-fact, and
dated, but it need not be sealed, witnessed or acknowledged.
Section 2.10. STOCKHOLDER ACTION. Any action required or
permitted to be taken by the stockholders of the Corporation must
be effected at a duly called annual meeting or special meeting of
stockholders of the Corporation, unless such action requiring or
permitting stockholder approval is approved by a majority of the
Continuing Directors (as defined in the Certificate), in which
case such action may be authorized or taken by the holders of
outstanding shares of stock having not less than the minimum
voting power that would be necessary to authorize or take such
action at a meeting of stockholders at which all shares entitled
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to vote thereon were present and voted, provided all other
requirements of applicable law and the Certificate have been
satisfied.
Section 2.11. LIST OF STOCKHOLDERS. The Secretary of the
Corporation shall prepare and make (or cause to be prepared and
made), 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, 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, during
ordinary business hours, for a period of at least ten (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 the 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 duration
thereof, and may be inspected by any stockholder who is present.
Section 2.12. INSPECTORS OF ELECTION. In advance of any
meeting of stockholders, the Board of Directors may appoint
Inspectors of Election to act at such meeting or at any
adjournment or adjournments thereof. If such Inspectors are not
so appointed or fail or refuse to act, the chairman of any such
meeting may (and, upon the demand of any stockholder or
stockholder's proxy, shall) make such an appointment.
The number of Inspectors of Election shall be one (1) or
three (3) as directed by the Chairman of the Board from time to
time. If there are three (3) Inspectors of Election, the
decision, act or certificate of a majority shall be effective and
shall represent the decision, act or certificate of all. No such
Inspector need be a stockholder of the Corporation.
The Inspectors of Election shall determine the number of
shares outstanding, the voting power of each, the shares
represented at the meeting, the existence of a quorum and the
authenticity, validity and effect of proxies; they shall receive
votes, ballots, or consents, hear and determine all challenges and
questions in any way arising in connection with the right to vote,
count and tabulate all votes or consents, determine when the polls
shall close and determine the result; and finally, they shall do
such acts as may be proper to conduct the election or vote with
fairness to all stockholders. On request, the Inspectors shall
make a report in writing to the secretary of the meeting
concerning any challenge, question or other matter as may have
been determined by them and shall execute and deliver to such
secretary a certificate of any fact found by them.
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ARTICLE III
DIRECTORS
Section 3.01. POWERS. The business and affairs of the
Corporation shall be managed by and be under the direction of the
Board of Directors. The Board of Directors shall exercise all the
power of the Corporation, except those that are conferred upon or
reserved to the stockholders by statute, the Certificate or these
Bylaws.
Section 3.02. NUMBER. Except as otherwise fixed pursuant
to the provisions of Section 4 of Article Fourth of the
Certificate in connection with rights to elect additional
directors under specified circumstances which may be granted to
the holders of any class or series of Preferred Stock, par value
One Cent ($0.01) per share of the Corporation ("Preferred Stock"),
the number of directors shall be fixed from time to time by
resolution of the Board of Directors but shall not be less than
three (3). The Board of Directors shall consist of nine (9)
directors until changed as herein provided.
Section 3.03. INDEPENDENT OUTSIDE DIRECTORS. At least
thirty three and one-third percent (33 1/3%) of the members of the
Board of Directors of the Corporation shall at all times be
"Independent Outside Directors," which term is hereby defined to
mean any director who: has not been an officer or employee of the
Corporation or Infinity Broadcasting Corporation or any of their
respective subsidiaries, or any other person having a relationship
which, in the opinion of the Board of Directors or a committee
thereof, would interfere with the exercise of independent
judgement in carrying out the responsibilities of a director.
Section 3.04. ELECTION AND TERM OF OFFICE. Except as
provided in Section 3.07 hereof and subject to the right to elect
additional directors under specified circumstances which may be
granted, pursuant to the provisions of Section 4 of Article Fourth
of the Certificate, to the holders of any class or series of
Preferred Stock, directors shall be elected by the stockholders of
the Corporation. The Board of Directors shall be and is divided
into three classes: Class I, Class II and Class III. The number
of directors in each class shall be the whole number contained in
the quotient obtained by dividing the authorized number of
directors (fixed pursuant to Section 3.02 hereof) by three. If a
fraction is also contained in such quotient, then additional
directors shall be apportioned as follows: if such fraction is
one-third, the additional director shall be a member of Class I;
and if such fraction is two-thirds, one of the additional
directors shall be a member of Class I and the other shall be a
member of Class II. Except as otherwise required by applicable
law, each director shall serve for a term ending on the date of
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the third annual meeting of stockholders of the Corporation
following the annual meeting at which such director was elected.
Notwithstanding the foregoing provisions of this Section
3.04: each director shall serve until his successor is elected
and qualified or until his death, resignation or removal; no
decrease in the authorized number of directors shall shorten the
term of any incumbent director; and additional directors, elected
pursuant to Section 4 of Article Fourth of the Certificate in
connection with rights to elect such additional directors under
specified circumstances which may be granted to the holders of any
class or series of Preferred Stock, shall not be included in any
class, but shall serve for such term or terms and pursuant to such
other provisions as are specified in the resolution of the Board
of Directors establishing such class or series.
Section 3.05. ELECTION OF CHAIRMAN OF THE BOARD. At the
organizational meeting immediately following the annual meeting of
stockholders, the directors shall elect a Chairman of the Board
from among the directors, who shall hold office until the
corresponding meeting of the Board of Directors in the next year
and until his successor shall have been elected or until his
earlier resignation or removal. Any vacancy in such office may be
filled for the unexpired portion of the term in the same manner by
the Board of Directors at any regular or special meeting.
Section 3.06. REMOVAL. Subject to the right to elect
directors under specified circumstances which may be granted
pursuant to Section 4 of Article Fourth of the Certificate to the
holders of any class or series of Preferred Stock, any director
may be removed from office only as provided in Article Tenth of
the Certificate.
Section 3.07. VACANCIES AND ADDITIONAL DIRECTORSHIPS.
Except as otherwise provided pursuant to Section 4 of Article
Fourth of the Certificate in connection with rights to elect
additional directors under specified circumstances which may be
granted to the holders of any class or series of Preferred Stock,
newly created directorships resulting from any increase in the
number of directors and any vacancies on the Board of Directors
resulting from death, resignation, disqualification, removal or
other cause shall be filled solely by the affirmative vote of a
majority of the remaining directors then in office, regardless of
their class, even though less than a quorum of the Board of
Directors. Any director elected in accordance with the preceding
sentence shall hold office for the remainder of the full term of
the class of directors in which the new directorship was created
or the vacancy occurred and until such director's successor shall
have been elected and qualified or until such director's death,
resignation or removal, whichever first occurs. No decrease in
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the number of directors constituting the Board of Directors shall
shorten the term of any incumbent director.
Section 3.08. REGULAR AND SPECIAL MEETINGS. Regular
meetings of the Board of Directors shall be held immediately
following the annual meeting of the stockholders, and at such
other times as shall be from time to time set by the Board of
Directors, unless a regular meeting is otherwise called by the
Chairman of the Board in accordance with applicable law.
Special meetings of the Board of Directors shall be held
upon call by or at the direction of the Chairman of the Board, the
Chief Executive Officer, the Executive Vice President, or any two
directors, except that when the Board of Directors consists of one
director, then the one director may call a special meeting.
Except as otherwise required by law, notice of each special
meeting shall be mailed to each director, addressed to him at his
residence or usual place of business, at least two days before the
day on which the meeting is to be held, or shall be sent to him at
such place by telex, telegram, cable, facsimile transmission or
telephoned or delivered to him personally, not later than the day
before the day on which the meeting is to be held. Such notice
shall state the time and place of such meeting, but need not state
the purpose or purposes thereof, unless otherwise required by law,
the Certificate or these Bylaws.
Notice of any meeting need not be given to any director who
shall attend such meeting in person or who shall waive notice
thereof, before or after such meeting, in a signed writing.
Section 3.09. QUORUM. At all meetings of the Board of
Directors, a majority of the fixed number of directors shall
constitute a quorum for the transaction of business, except that
when the Board of Directors consists of one director, then the one
director shall constitute a quorum. In the absence of a quorum,
the directors present, by majority vote and without notice other
than by announcement, may adjourn the meeting from time to time
until a quorum shall be present. At any reconvened meeting
following such an adjournment at which a quorum shall be present,
any business may be transacted which might have been transacted at
the meeting as originally notified.
Section 3.10. VOTES REQUIRED. Except as otherwise provided
by applicable law or by the Certificate, the vote of a majority of
the directors present at a meeting duly held at which a quorum is
present shall be sufficient to pass any measure.
Section 3.11. PLACE AND CONDUCT OF MEETINGS. Each regular
meeting and special meeting of the Board of Directors shall be
held at a location determined as follows: The Board of Directors
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may designate any place, within or without the State of Delaware,
for the holding of any meeting. If no such designation is made:
(i) any meeting called by a majority of the directors shall be
held at such location, within the county of the Corporation's
principal executive office, as the directors calling the meeting
shall designate; and (ii) any other meeting shall be held at such
location, within the county of the Corporation's principal
executive office, as the Chairman of the Board may designate or,
in the absence of such designation, at the Corporation's principal
executive office. Subject to the requirements of applicable law,
all regular and special meetings of the Board of Directors shall
be conducted in accordance with such rules and procedures as the
Board of Directors may approve and, as to matters not governed by
such rules and procedures, as the chairman of such meeting shall
determine. The chairman of any regular or special meeting shall
be the Chairman of the Board, or in his absence a person
designated by the Board of Directors. The Secretary, or in the
absence of the Secretary a person designated by the chairman of
the meeting, shall act as secretary of the meeting. Meetings of
the Board of Directors may be held through use of conference
telephone or similar communications equipment so long as all
members participating in such meeting can hear one another at the
time of such meeting. Participation in such a meeting constitutes
presence in person at such meeting.
Section 3.12. ACTION BY UNANIMOUS WRITTEN CONSENT. Any
action required or permitted to be taken by the Board may be taken
without a meeting, if all members of the Board shall individually
or collectively consent in writing to such action. Such written
consent or consents shall be filed with the minutes of the
proceedings of the Board. Such action by written consent shall
have the same force and effect as a unanimous vote of such
Directors.
Section 3.13. FEES AND COMPENSATION. Directors shall be
paid such compensation as may be fixed from time to time by
resolutions of the Board of Directors (a) for their usual and
contemplated services as directors, (b) for their services as
members of committees appointed by the Board of Directors,
including attendance at committee meetings as well as services
which may be required when committee members must consult with
management staff, and (c) for extraordinary services as directors
or as members of committees appointed by the Board of Directors,
over and above those services for which compensation is fixed
pursuant to items (a) and (b) in this Section 3.13. Compensation
may be in the form of an annual retainer fee or a fee for
attendance at meetings, or both, or in such other form or on such
basis as the resolutions of the Board of Directors shall fix.
Directors shall be reimbursed for all reasonable expenses incurred
by them in attending meetings of the Board of Directors and
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committees appointed by the Board of Directors and in performing
compensable extraordinary services. Nothing contained herein
shall be construed to preclude any director from serving the
Corporation in any other capacity, such as an officer, agent,
employee, consultant or otherwise, and receiving compensation
therefor.
Section 3.14. COMMITTEES OF THE BOARD OF DIRECTORS.
Subject to the requirements of applicable law, the Board of
Directors may from time to time establish committees, including
standing or special committees, which shall have such duties and
powers as are authorized by these Bylaws or by the Board of
Directors. Committee members, and the chairman of each committee,
shall be appointed by the Board of Directors. The Chairman of the
Board, in conjunction with the several committee chairmen, shall
make recommendations to the Board of Directors for its final
action concerning members to be appointed to the several
committees of the Board of Directors. Any member of any committee
may be removed at any time with or without cause by the Board of
Directors. Vacancies which occur on any committee shall be filled
by a resolution of the Board of Directors. If any vacancy shall
occur in any committee by reason of death, resignation,
disqualification, removal or otherwise, the remaining members of
such committee, so long as a quorum is present, may continue to
act until such vacancy is filled by the Board of Directors. The
Board of Directors may, by resolution, at any time deemed
desirable, discontinue any standing or special committee. Members
of standing committees, and their chairmen, shall be elected
yearly at the organizational meeting of the Board of Directors
which is held immediately following the annual meeting of
stockholders.
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Section 3.15. MEETINGS OF COMMITTEES. Each committee of
the Board of Directors shall fix its own rules of procedure
consistent with the provisions of applicable law and of any
resolutions of the Board of Directors governing such committee.
Each committee shall meet as provided by such rules or such
resolution of the Board of Directors, and shall also meet at the
call of its chairmen or any two (2) members of such committee.
Unless otherwise provided by such rules or by such resolution, the
provisions of these Bylaws under Article III entitled "Directors"
relating to the place of holding meetings and the notice required
for meetings of the Board of Directors shall govern the place of
meetings and notice of meetings for committees of the Board of
Directors. A majority of the members of each committee shall
constitute a quorum thereof, except that when a committee consists
of one (1) member, then the one (1) member shall constitute a
quorum. In the absence of a quorum, a majority of the members
present at the time and place of any meeting may adjourn the
meeting from time to time until a quorum shall be present and the
meeting may be held as adjourned without further notice or waiver.
Except in cases where it is otherwise provided by the rules of
such committee or by a resolution of the Board of Directors, the
vote of a majority of the members present at a duly constituted
meeting at which a quorum is present shall be sufficient to pass
any measure by the committee.
ARTICLE IV
OFFICERS
Section 4.01. DESIGNATION, ELECTION AND TERM OF OFFICE.
The Corporation shall have a Chairman of the Board or a Chief
Executive Officer or both, such Vice Presidents as the Board of
Directors deems appropriate, a Secretary and a Chief Financial
Officer. These officers shall be elected annually by the Board of
Directors at the organizational meeting immediately following the
annual meeting of stockholders, and each such officer shall hold
office until the corresponding meeting of the Board of Directors
in the next year and until his successor shall have been elected
and qualified or until his earlier resignation, death or removal.
Any vacancy in any of the above offices may be filled for the
unexpired portion of the term by the Board of Directors at any
regular or special meeting.
Section 4.02. CHAIRMAN OF THE BOARD. The Chairman of the
Board shall be the Chairman of the Board of Directors and shall,
subject to the power and authority of the Board of Directors, have
general supervision, direction and control of the business and
affairs of the Corporation. In addition to the above duties, he
shall have such other duties as may from time to time be assigned
to him by the Board of Directors.
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Section 4.03. CHIEF EXECUTIVE OFFICER. The Chief Executive
Officer shall be the general manager of the Corporation, subject
to the power of, and accountable to, the Board of Directors. He
shall have general charge and supervision of the operating
elements of the Corporation and shall perform such other duties as
may be assigned to him from time to time by the Board of
Directors.
Section 4.04. CHIEF FINANCIAL OFFICER. The Chief Financial
Officer shall be the financial officer of the Corporation. He
shall be responsible to the Chief Executive Officer and the Board
of Directors for the management and supervision of all financial
matters and to provide for the financial growth and stability of
the Corporation. He shall attend all regular meetings of the
Board of Directors and keep the Directors currently informed
concerning all significant financial matters that could impact
upon the business or affairs of the Corporation. He shall also
perform such additional duties as may be assigned to him from time
to time by the Board of Directors or the Chief Executive Officer.
Section 4.05. VICE PRESIDENTS. Vice Presidents of the
Corporation that are elected by the Board of Directors shall
perform such duties as may be assigned to them from time to time
by the Chief Executive Officer.
Section 4.06. SECRETARY. The Secretary shall keep the
minutes of the meetings of the stockholders, the Board of
Directors and all committee meetings. He shall be the custodian
of the corporate seal and shall affix it to all documents which he
is authorized by law or the Board of Directors to sign and seal.
He also shall perform such other duties as may be assigned to him
from time to time by the Board of Directors or the Chief Executive
Officer.
Section 4.07. ASSISTANT OFFICERS. The Chief Executive
Officer may appoint one or more assistant secretaries, and such
other assistant officers as the business of the Corporation may
require, each of whom shall hold office for such period, have such
authority and perform such duties as may be specified from time to
time by the Chief Executive Officer.
Section 4.08. WHEN DUTIES OF AN OFFICER MAY BE DELEGATED.
In the case of the absence or disability of an officer of the
Corporation or for any other reason that may seem sufficient to
the Board of Directors, the Board of Directors, or any officer
designated by it, or the Chief Executive Officer, may, for the
time of the absence or disability, delegate such officer's duties
and powers to any other officer of the Corporation.
Section 4.09. OFFICERS HOLDING TWO OR MORE OFFICES. The
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same person may hold any two or more of the above-mentioned
offices. However, no officer shall execute, acknowledge or verify
any instrument in more than one capacity, if such instrument is
required by law, by the Certificate or by these Bylaws, to be
executed, acknowledged or verified by any two or more officers.
Section 4.10. COMPENSATION. The Board of Directors shall
have the power to fix the compensation of all officers and
employees of the Corporation.
Section 4.11. RESIGNATIONS. Any officer may resign at any
time by giving written notice to the Board of Directors, to the
Chairman of the Board, to the Chief Executive Officer, or to the
Secretary of the Corporation. Any such resignation shall take
effect at the time specified therein unless otherwise determined
by the Board of Directors. The acceptance of a resignation by the
Corporation shall not be necessary to make it effective.
Section 4.12. REMOVAL. Any officer of the Corporation may
be removed, with or without cause, by the affirmative vote of a
majority of the entire Board of Directors. Any assistant officer
of the Corporation may be removed, with or without cause, by the
Chairman of the Board, the Chief Executive Officer or by the Board
of Directors.
ARTICLE V
INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES
AND OTHER CORPORATE AGENTS
To the fullest extent authorized by the Delaware General
Corporation Law, as the same exists or may hereafter be amended
(but, in the case of any such amendment, only to the extent that
such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to
provide prior to such amendment), the Corporation shall indemnify
and hold harmless against all expenses, liability and loss
(including, without limitation, attorneys' fees, judgments, fines,
ERISA excise taxes or penalties and amounts paid or to be paid in
settlement) reasonably incurred or suffered by each person who was
or is a party to, or is threatened to be made a party to, any
threatened, pending or completed action, suit or proceeding,
whether or not by or in the right of the Corporation, and whether
civil, criminal, administrative, investigative or otherwise (any
such action, suit or proceeding being hereinafter in this Article
referred to as a "proceeding"), by reason of the fact that such
person is or was a director, officer, employee or agent of the
Corporation, is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, including
service with respect to employee benefit plans, or was a director,
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officer, employee or agent of a foreign or domestic corporation
which was a predecessor corporation of the Corporation or of
another enterprise at the request of such predecessor corporation
(any such person being hereafter in this Article referred to as an
"indemnifiable party"). The right to indemnification conferred by
this Article shall be a contract right. Where required by law,
the indemnification provided for in this Article shall be made
only as authorized in the specific case upon a determination, in
the manner provided by law, that the indemnification of the
indemnifiable party is proper in the circumstances. The
Corporation shall advance to indemnifiable parties expenses
incurred in defending any proceeding prior to the final
disposition thereof subject to the receipt of such undertakings
from such indemnifiable party as shall be required by the
applicable law. This Article shall create a right of
indemnification for each such indemnifiable party whether or not
the proceeding to which the indemnification relates arose in whole
or in part prior to adoption of this Article (or the adoption of
the comparable provisions of the Bylaws of the Corporation's
predecessor corporation) and, in the event of the death of an
indemnifiable party, such right shall extend to such indemnifiable
party's heirs and legal representatives.
If a claim under this Article is not paid in full by the
Corporation within thirty days after a written claim has been
received by the Corporation, the indemnifiable party may at any
time thereafter bring suit against the Corporation to recover the
unpaid amount of the claim and, if successful in whole or in part,
the indemnifiable party shall be entitled to be paid also the
expense of prosecuting such claim. It shall be a defense to any
such action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its
final disposition where the required undertaking, if any is
required, has been tendered to the Corporation) that the
indemnifiable party has not met the standards of conduct which
make it permissible under the Delaware General Corporation Law for
the Corporation to indemnify the claimant for the amount claimed,
but the burden of proving such defense shall be on the
Corporation. Neither the failure of the Corporation (including
its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant
is proper in the circumstances because he or she met the
applicable standard of conduct set forth in the Delaware General
Corporation Law, nor an actual determination by the Corporation
(including its Board of Directors, independent legal counsel, or
its stockholders) that the claimant has not met such applicable
standard or conduct, shall be a defense to the action or create a
presumption that the claimant has not met the applicable standard
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of conduct.
The right of indemnification hereby given shall not be
exclusive of any right such indemnifiable party may have, whether
by law or under any agreement, insurance policy, vote of the Board
of Directors or stockholders, or otherwise.
The Corporation shall have power to purchase and maintain
insurance on behalf of any indemnifiable party against any
liability asserted against or incurred by the indemnifiable party
in such capacity or arising out of the indemnifiable party's
status as such whether or not the Corporation would have the power
to indemnify the indemnifiable party against such liability.
ARTICLE VI
STOCK
Section 6.01. CERTIFICATES. Except as otherwise provided
by law, each stockholder shall be entitled to a certificate or
certificates which shall represent and certify the number and
class (and series, if appropriate) of shares of stock owned by him
in the Corporation. Each certificate shall be signed in the name
of the Corporation by the Chairman of the Board or the Chief
Executive Officer or a Vice President together with the Secretary,
or an Assistant Secretary, or the Chief Financial Officer. Any or
all of the signatures on any 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 person were an officer, transfer
agent or registrar at the date of issue.
Section 6.02. TRANSFER OF SHARES. Shares of stock shall be
transferable on the books of the Corporation only by the holder
thereof, in person or by his duly authorized attorney, upon the
surrender of the certificate representing the shares to be
transferred, properly endorsed, to the Corporation's registrar if
the Corporation has a registrar. The Board of Directors shall
have power and authority to make such other rules and regulations
concerning the issue, transfer and registration of certificates of
the Corporation's stock as it may deem expedient.
Section 6.03. TRANSFER AGENTS AND REGISTRARS. The
Corporation may have one or more transfer agents and one or more
registrars of its stock whose respective duties the Board of
Directors or the Secretary may, from time to time, define. No
certificate of stock shall be valid until countersigned by a
transfer agent, if the Corporation has a transfer agent, or until
registered by a registrar, if the Corporation has a registrar.
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The duties of transfer agent and registrar may be combined.
Section 6.04. STOCK LEDGERS. Original or duplicate stock
ledgers, containing the names and addresses of the record
stockholders of the Corporation, and the number of shares of each
class of stock held by them, shall be kept at the principal
executive office of the Corporation or at the office of its
transfer agent or registrar. The Secretary or his designee 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, during ordinary business hours, for a period of at least
ten 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 the 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 stockholder who is
present.
Section 6.05. RECORD DATES. The Board of Directors shall
fix, in advance, a date as the record date for the purpose of
determining stockholders entitled to notice of, or to vote at, any
meeting of stockholders or any adjournment thereof, or
stockholders 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 in order to make a determination of stockholders for any
other proper purpose. Such date in any case shall be not more
than sixty (60) days, and in case of a meeting of stockholders,
not less than ten (10) days, prior to the date on which the
particular action, requiring such determination of stockholders,
is to be taken. Only those stockholders of record on the date so
fixed shall be entitled to any of the foregoing rights,
notwithstanding the transfer of any such stock on the books of the
Corporation after any such record date fixed by the Board of
Directors.
Section 6.06. NEW CERTIFICATES. In case any certificate of
stock is lost, stolen, mutilated or destroyed, the Board of
Directors may authorize the issuance of a new certificate in place
thereof upon such terms and conditions as it may deem advisable;
or the Board of Directors may delegate such power to any officer
or officers or agents of the Corporation; but the Board of
Directors or such officer or officers or agents, in their
discretion, may refuse to issue such a new certificate unless the
Corporation is ordered to do so by a court of competent
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jurisdiction. Furthermore, the Corporation, or its officers or
agents, may require the owner of a lost, stolen, mutilated or
destroyed certificate, or his legal representative, to give the
Corporation a bond (or other security) sufficient to indemnify it
against any claim that may be made on account of the alleged loss,
theft, mutilation or destruction of any such certificate or the
issuance of new certificates or uncertified shares.
Section 6.07. STOCK PURCHASE PLANS; STOCK OPTION PLANS.
1. The Corporation may adopt and carry out a stock
purchase plan or agreement or stock option plan or agreement
providing for the issue and sale, for such consideration as may be
fixed, of its unissued shares, or of issued shares acquired or to
be acquired, to one or more of the employees or directors of the
Corporation or of a subsidiary or to a trustee on their behalf and
for the payment for such shares in installments or at one time,
and may provide for aiding any such persons in paying for such
shares by compensation for services rendered, promissory notes or
otherwise.
2. A stock purchase plan or agreement or stock option
plan or agreement may include, among other features, the fixing of
eligibility for participation therein, the class and price of
shares to be issued or sold under the plan or agreement, the
number of shares which may be subscribed for, the method of
payment therefor, the reservation of title until full payment
therefor, the effect of the termination of employment, an option
or obligation on the part of the Corporation to repurchase the
shares upon termination of employment, subject to applicable law,
restrictions upon transfer of the shares and the time limits of
and termination of the plan.
ARTICLE VII
CORPORATE RECORDS
Section 7.01. TYPES OF RECORDS. The Corporation shall keep
adequate and correct books and records of account, shall keep
minutes of the proceedings of the stockholders, Board of Directors
and committees of the Board of Directors and shall keep at its
principal executive office, or at the office of its transfer agent
or registrar, a record of its stockholders, giving the names and
addresses of all stockholders and the number and class of shares
held by each. Such minutes shall be kept in written form. Such
other books and records shall be kept either in written form or in
any other form capable of being converted into clearly legible
written form within a reasonable time.
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Section 7.02. FINANCIAL STATEMENTS AND REPORTS. To the
extent applicable, the Corporation will file with the Securities
and Exchange Commission ("S.E.C.") all quarterly, other interim,
and annual financial reports required by the Securities and
Exchange Act of 1934 (the "Exchange Act"). Further, so long as
the Corporation is subject to the reporting requirements of
Section 12 of the Exchange Act, it shall prepare and submit to
stockholders an annual report in accordance with Rule 14a-3 of the
S.E.C. A copy of the foregoing reports shall be maintained in the
principal executive office of the Corporation and such reports
shall be exhibited at all reasonable times to any stockholder
requesting an examination of them.
The financial statements referred to in this section shall
be accompanied by the report thereon, if any, of any independent
accountants engaged by the Corporation or the certificate of an
authorized officer of the Corporation that such financial
statements were prepared without audit from the books and records
of the Corporation.
Section 7.03. STOCKHOLDERS' RIGHT OF INSPECTION. The books
and records and minutes of proceedings of the stockholders and the
Board of Directors and committees of the Board of Directors shall
be open to inspection, upon the written demand under oath stating
the purpose thereof, by any stockholder or holder of a voting
trust certificate at any reasonable time during usual business
hours, for any proper purpose. This right of inspection shall
extend to the records of the subsidiaries, if any, of the
Corporation. Such inspection may be made in person, or by agent
or attorney, and the right of inspection includes the right to
copy and make extracts.
Section 7.04. DIRECTORS' RIGHT OF INSPECTION. Every
director shall have the right at any reasonable time to inspect
and copy all books, records and documents of every kind and to
inspect the physical properties of the Corporation and/or its
subsidiary corporations for a purpose reasonably related to his
position as a director. Such inspection may be made in person or
by agent or attorney and the right of inspection includes the
right to copy and make extracts.
ARTICLE VIII
SUNDRY PROVISIONS
Section 8.01. FISCAL YEAR. The fiscal year of the
corporation shall end on the 31st day of December of each year.
Section 8.02. SEAL. The seal of the Corporation shall bear
the name of the Corporation, the date of its incorporation, and
the word "Delaware."
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Section 8.03. VOTING OF STOCK IN OTHER CORPORATIONS. Any
shares of stock in other corporations or associations, which may
from time to time be held by the Corporation, may be represented
and voted at any of the stockholders' meetings thereof by the
Chairman of the Board or his designee. The Board of Directors,
however, may by resolution appoint some other person or persons to
vote such shares, in which case such person shall be entitled to
vote such shares upon the production of a certified copy of such
resolution.
Section 8.04. AMENDMENTS. These Bylaws may be adopted,
repealed, rescinded, altered or amended only as provided in
Articles Fifth and Sixth of the Certificate.
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