Exhibit 3(ii)
AMENDED AND RESTATED
BY-LAWS
OF
LEVEL 3 COMMUNICATIONS, INC.
ARTICLE I.
OFFICES
SECTION 1.1. REGISTERED OFFICE AND AGENT. The registered office
of Level 3 Communications, Inc. (the "Corporation") is at 2711 Centerville Road
Suite 400, Wilmington, New Castle County, Delaware, 19808. The registered agent
at that address is Corporation Service Company.
SECTION 1.2. OTHER OFFICES. The Corporation may have other
offices from time to time as the directors may designate or as the business may
require.
ARTICLE II.
STOCKHOLDERS
SECTION 2.1. ANNUAL MEETINGS. The annual meeting of
stockholders shall be held at such place, date, and time as is designated by the
Board of Directors. At this meeting, directors shall be elected and any other
proper business may be transacted.
SECTION 2.2. SPECIAL MEETINGS. Special meetings of the
stockholders of the Corporation may be called for any purpose or purposes by the
Chairman of the Board, the Chief Executive Officer, the President or by a
majority of the directors. Business transacted at any special meeting of
stockholders shall be limited to the purposes stated in the notice of the
meeting.
SECTION 2.3. PLACE OF MEETINGS. Meetings of stockholders shall
be held at such place, either within or without the State of Delaware, as shall
be designated by those calling the meeting.
SECTION 2.4. NOTICES OF MEETINGS. A written notice shall be
given to each stockholder entitled to vote at the meeting not less than 10 nor
more than 60 days before each annual or special meeting. The notice shall state
the place, date, and hour of the meeting. The notice of a special meeting shall
state the purposes for which the meeting has been called. Written notices may be
given by either personal delivery or mail. If mailed, notice is given when
deposited in the United States mail, postage prepaid directed to the stockholder
at his address as it appears on the records of the Corporation. No notice is
required to be given to a stockholder to whom notices of two consecutive annual
meetings (and any other written notice sent between those meetings) have been
mailed addressed to that person at his address as shown on the corporate records
and have been returned undeliverable.
SECTION 2.5. WAIVER OF NOTICE. A written waiver, signed by a
stockholder, whether before or after an annual or special meeting, shall be
equivalent to the
giving of such notice. Attendance by a stockholder, without objection to the
notice, whether in person or by proxy, at an annual or special meeting shall
constitute waiver of notice of such meeting.
SECTION 2.6. VOTING LIST. At least ten days before each
stockholders' meeting, the Secretary shall prepare a complete list of
stockholders entitled to vote at such meeting. Arranged in alphabetical order,
the list shall show the name, address, and number of shares of each stockholder
entitled to vote. For at least 10 days before the meeting, the list shall be
open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, at the principal business office of the
Company located in Broomfield, Colorado. The list shall also be available at the
meeting for inspection by any stockholder present.
SECTION 2.7. RECORD DATE. The Board of Directors may fix a
record date to determine which stockholders are entitled to: (a) notice of a
stockholders' meeting; (b) vote at a stockholders' meeting; (c) receive payment
for a dividend; (d) receive a distribution or allotment of rights; (e) exercise
any rights in respect of any change, conversion, or exchange of stock; or (f)
notice for the purpose of any other lawful action. The record date shall not be
less than 10 nor more than 60 days before any such action. 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 2.8. PROXY. Each stockholder eligible to vote may
authorize another person or persons to act for him by proxy. No proxy shall be
valid after three years from its date, unless the proxy provides for a longer
period.
SECTION 2.9. VOTING RIGHTS. Unless otherwise provided in the
Corporation's Restated Certificate of Incorporation, each stockholder eligible
to vote shall have one vote for each share of capital stock held by such
stockholder.
SECTION 2.10. QUORUM AND REQUIRED VOTE. A majority of the
shares entitled to vote, present in person or represented by proxy, shall
constitute a quorum at a meeting of stockholders. Unless otherwise required by
the Corporation's Restated Certificate of Incorporation or by statute, the
affirmative vote of the majority of shares present in person or represented by
proxy at the meeting and entitled to vote on the subject matter shall be the act
of the stockholders. However, if less than a quorum but more than one-third of
all shares eligible to vote is present at a scheduled meeting, a majority of the
shares present may adjourn the scheduled meeting.
SECTION 2.11. ADJOURNED MEETINGS. No new notice is required if
the time and place of the adjourned meeting is announced at the meeting at which
the adjournment is taken and if the adjournment is for not more than 30 days. At
an adjourned meeting, the stockholders may transact any business which might
have been transacted at the original meeting.
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SECTION 2.12. NO ACTION WITHOUT A MEETING. Any action required
or permitted at a stockholders' meeting may be taken only upon the vote of the
stockholders at an annual or special meeting duly noticed and called, and may
not be taken by a written consent of the stockholders.
SECTION 2.13. CONDUCT OF MEETINGS.
(a) The Chief Executive Officer of the Corporation shall
preside at each meeting of the stockholders. In the absence of the Chief
Executive Officer, the meeting shall be chaired by an other officer of the
Corporation in accordance with the following order: Chairman of the Board, Vice
Chairman, President, any Executive Vice President, any Senior Vice President and
any Vice President. In the absence of any of such officers, the meeting shall be
chaired by a person chosen by a majority in interest of the stockholders present
in person or represented by proxy and entitled to vote thereat, who shall act as
chairman. The Secretary or in his or her absence an Assistant Secretary or a
person whom the chairman of the meeting shall appoint shall act as secretary of
the meeting and keep a record of the proceedings thereof.
(b) The Board of Directors shall be entitled to make such rules
or regulations for the conduct of meeting of stockholders as it shall deem
necessary, appropriate or convenient. Subject to such rules and regulations of
the Board of Directors, if any, the chairman of the meeting shall have the right
and authority to prescribe such rules, regulations and procedures and to do all
such acts as, in the judgment of the chairman, are necessary, appropriate or
convenient for the proper conduct of the meeting including, without limitation,
establishing an agenda or order of business for the meeting, rules and
procedures for maintaining order at the meeting and the safety of those present,
limitations on participation in such meeting to stockholders of record of the
Corporation and their duly authorized and constituted proxies, and such other
persons as the chairman shall permit, restrictions on entry to the meeting after
the time fixed for the commencement thereof, limitations an the time allotted to
questions or comment by participants and regulation of the opening and closing
of the ballot. Unless, and to the extent, determined by the Board of Directors
or the chairman of the meeting, meetings of stockholders shall not be required
to be held in accordance with rules of parliamentary procedure.
SECTION 2.14. ADVANCE NOTIFICATION OF BUSINESS TO BE TRANSACTED
AT STOCKHOLDER MEETINGS.
(a) No business may be transacted at an annual meeting of
stockholders, other than business that is either (a) specified in the notice of
meeting (or any supplement thereto) given by or at the direction of the Board of
Directors (or any duly authorized committee thereof), (b) otherwise properly
brought before the annual meeting by or at the direction of the Board of
Directors (or any duly authorized committee thereof) or (c) otherwise properly
brought before the annual meeting by any stockholder of the Corporation (i) who
is a stockholder of record on the date of the giving of the notice provided for
in this section and on the record date for the determination of stockholders
entitled to vote at such annual meeting and (ii) who complies with the notice
procedures set forth in this section.
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(b) In addition to any other applicable requirements for
business to be properly brought before an annual meeting by a stockholder, such
stockholder must have given timely notice thereof in proper written form to the
Secretary.
(c) To be timely, a stockholder's notice to the Secretary must
be delivered to or mailed and received at the principal executive office of the
Corporation not less than 60 days nor more than 90 days prior to the anniversary
date of the immediately preceding annual meeting of stockholders; provided,
however, that in the event that the annual meeting is called for a date that is
not within 30 days before or after such anniversary date, notice by the
stockholder in order to be timely must be so received not later than the close
of business on the tenth day following the day on which such notice of the date
of the annual meeting was mailed or public disclosure of the date of the annual
meeting was made, whichever first occurs.
(d) To be in proper written form, a stockholder's notice to the
Secretary must set forth as to each matter such stockholder proposes to bring
before the annual meeting (i) a brief description of the business desired to be
brought before the annual meeting and the reasons for conducting such business
at the annual meeting, (ii) the name and record address of such stockholder,
(iii) the class or series and number of shares of capital stock of the
Corporation which are owned beneficially or of record by such stockholder, (iv)
a description of all arrangements or understandings between such stockholder and
any other person or persons (including their names and addresses) in connection
with the proposal of such business by such stockholder and any material interest
of such stockholder in such business and (v) a representation that such
stockholder intends to appear in person or by proxy at the annual meeting to
bring such business before the meeting.
(e) No business shall be conducted at the annual meeting of
stockholders except business brought before the annual meeting in accordance
with the procedures set forth in this section; provided, however, that, once
business has been properly brought before the annual meeting in accordance with
such procedures, nothing in this section shall be deemed to preclude discussion
by any stockholder of any such business. If the chairman of an annual meeting
determines that business was not properly brought before the annual meeting in
accordance with the foregoing procedures, the chairman shall declare to the
meeting that the business was not properly brought before the meeting and such
business shall not be transacted.
ARTICLE III.
DIRECTORS
SECTION 3.1. GENERAL POWERS. The business and affairs of this
Corporation shall be managed by its Board of Directors.
SECTION 3.2. NUMBER AND QUALIFICATIONS. The Board of Directors
shall fix, by resolution from time to time, the number of directors which shall
constitute the whole Board of Directors; provided, however, that such number
shall be no fewer than six and no more than fifteen. Directors need not be
stockholders.
SECTION 3.3. ELECTION AND TERM. Upon the original filing of
the amendment to the Corporation's Restated Certificate of Incorporation that
amends and restates
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Article VII, Para. B to remove the classification of the Board of Directors,
(the "Effective Time"), at each annual meeting of the stockholders of the
Corporation subsequent to the Effective Time, the date of which shall be fixed
by or pursuant to these By-laws, the successors of the class of directors whose
terms expire at that meeting shall be elected to hold office for a term of one
(1) year and until such director's successor is elected and qualified or until
such director's earlier resignation or removal; provided, however, that each
director elected at the annual meetings of the Corporation held in 2004 and 2005
shall serve for the full three-year term to which such director was elected or
until such director's earlier resignation or removal. No decrease in the number
of directors constituting the Board of Directors shall shorten the term of any
incumbent director.
SECTION 3.4. VACANCIES. Vacancies, however resulting, and
newly created directorships resulting from any increase in the authorized number
of directors may be filled by a majority of the directors then in office,
although less then a quorum, or by a sole remaining director. Any director
elected to fill such a vacancy or newly created directorship shall hold office
until the next annual meeting of stockholders of the Corporation.
SECTION 3.5. REMOVAL. Subject to any rights of the holders of
any series of Preferred Stock to elect additional directors under specified
circumstances, any director, or the entire Board of Directors, may be removed
from office at any time, but only for cause and only by the affirmative vote of
the holders of at least sixty-six and two-thirds percent (66 2/3%) of the
outstanding stock entitled to vote thereon.
SECTION 3.6. ANNUAL MEETINGS. The Board of Directors may
provide by resolution for the time and place of annual meetings of the Board of
Directors, without notice other than such resolution.
SECTION 3.7. REGULAR MEETINGS. The Board of Directors may
provide by resolution for the time and place of regular meetings of the Board of
Directors, without notice other than such resolution.
SECTION 3.8. SPECIAL MEETINGS. Special meetings of the Board
of Directors shall be called by the Chairman of the Board, the Chief Executive
Officer, the President or by a majority of the directors. The person(s) calling
the meeting may fix the specific time and place of the meeting.
SECTION 3.9. NOTICE OF MEETING. Notice of any special meeting
of the Board of Directors shall be given to each director at his business or
residence in writing or by telegram or by telephone communication or by
facsimile transmission or by e-mail transmission. If mailed, such notice shall
be deemed adequately delivered when deposited in the United States mails so
addressed, with postage thereon prepaid, at least five days before such meeting.
If by telegram, such notice shall be deemed adequately delivered when the
telegram is delivered to the telegraph company at least twenty-four hours before
such meeting. If by telephone or by e-mail transmission, the notice shall be
given at least twelve hours prior to the time set for the meeting. If by
facsimile transmission, the notice shall be deemed adequately delivered if
transmitted at least twenty-four hours before such meeting. Neither the business
to be transacted at, nor the purpose of, any regular or special meeting of the
Board of Directors need be specified in the
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notice of such meeting, except for amendments to these By-laws as provided under
Article IX hereof. A meeting of the Board of Directors may be held at any time
without notice if all the directors are present or if those not present waive
notice of the meeting in writing, either before or after such meeting.
SECTION 3.10. WAIVER OF NOTICE. A written waiver, signed by
the director, whether before or after the meeting of the Board of Directors,
shall be equivalent to the giving of such notice. Attendance by a director,
without objection to the notice, at a meeting of the Board of Directors shall
constitute waiver of notice of such meeting.
SECTION 3.11. TELEPHONE PARTICIPATION. Directors may
participate in a meeting of the Board of Directors by means of conference
telephone or similar communications equipment if all persons participating in
the meeting can hear each other. Participation in a meeting of this kind shall
constitute presence in person at the meeting.
SECTION 3.12. QUORUM AND VOTING. A majority of the whole Board
of Directors shall constitute a quorum for the transaction of business. The vote
of the majority of the directors present at a meeting at which a quorum is
present shall be the act of the Board of Directors unless the vote of a greater
number is required by statute, the Corporation's Restated Certificate of
Incorporation, or these By-laws.
SECTION 3.13. ACTION WITHOUT A MEETING. Any action that may be
taken at a meeting of the directors may be taken without a meeting if a consent
in writing, setting forth the action taken, is signed by all directors.
SECTION 3.14. COMPENSATION. By resolution of the Board of
Directors, a director may be paid a fixed sum, and any expenses, for an annual
retainer or for attendance at a meeting of the Board of Directors as set forth
in such resolution. No such payment shall preclude a director from receiving
compensation for serving the Corporation in any other capacity.
SECTION 3.15. NOMINATION OF DIRECTORS.
(a) Only persons who are nominated in accordance with the
following procedures shall be eligible for election as directors of the
Corporation. Nominations of persons for election to the Board of Directors may
be made at any annual meeting of stockholders, or at any special meeting of
stockholders called for the purpose of electing directors, (a) by or at the
direction of the Board of Directors (or any duly authorized committee thereof)
or (b) by any stockholder of the Corporation (i) who is a stockholder of record
on the date of the giving of the notice provided for in this section and on the
record date for the determination of stockholders entitled to vote at such
meeting and (ii) who complies with the notice procedures set forth in this
section.
(b) In addition to any other applicable requirements, for a
nomination to be made by a stockholder, such stockholder must have given timely
notice thereof in proper written form to the Secretary of the Corporation.
(c) To be timely, a stockholder's notice to the Secretary must
be delivered to or mailed and received at the principal executive office of the
Corporation (a) in the case of an
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annual meeting, not less than 60 days nor more than 90 days prior to the
anniversary date of the immediately preceding annual meeting of stockholders;
provided, however, that in the event that the annual meeting is called for a
date that is not within 30 days before or after such anniversary date, notice by
the stockholder in order to be timely must be so received not later than the
close of business on the tenth day following the day on which such notice of the
date of the annual meeting was mailed or public disclosure of the date of the
annual meeting was made, whichever first occurs and (b) in the case of a special
meeting of stockholders called for the purpose of electing directors, not later
than the close of business on the tenth day following the day on which notice of
the date of the special meeting was mailed or public disclosure of the date of
the special meeting was made, whichever first occurs.
(d) To be in proper written form, a stockholder's notice to the
Secretary must set forth (a) as to each person whom the stockholder proposes to
nominate for election as a director (i) the name, age, business address and
residence address of the person, (ii) the principal occupation or employment of
the person, (iii) the class or series and number of shares of capital stock of
the Corporation which are owned beneficially or of record by the person and (iv)
any other information relating to the person that would be required to be
disclosed in a proxy statement or other filings required to be made in
connection with solicitation of proxies for election of directors pursuant to
Section 14 of the Securities Exchange Act of 1934 (the "Exchange Act"), and the
rules and regulations promulgated thereunder, and (b) as to the stockholder
giving the notice (i) the name and record address of such stockholder, (ii) the
class or series and number of shares of capital stock of the Corporation which
are owned beneficially or of record by such stockholder, (iii) a description of
all arrangements or understandings between such stockholder and each proposed
nominee and any other person or persons (including their names and addresses)
pursuant to which the nominations(s) are to be made by such stockholder, (iv) a
representation that such stockholder intends to appear in person or by proxy at
the meeting to nominate the persons named in its notice and (v) any other
information relating to such stockholder that would be required to be disclosed
in a proxy statement or other filings required to be made in connection with
solicitation of proxies for election of directors pursuant to Section 14 of the
Exchange Act and the rules and regulations promulgated thereunder. Such notice
must be accompanied by a written consent of each proposed nominee to being named
as a nominee and to serve as a director if elected.
(e) No person shall be eligible for election as a director of
the Corporation unless nominated in accordance with the procedures set forth in
this section. If the chairman of the meeting determines that a nomination was
not made in accordance with the foregoing procedures, the chairman shall declare
to the meeting that the nomination was defective and such defective nomination
shall be disregarded.
ARTICLE IV.
BOARD COMMITTEES
SECTION 4.1. FORMATION OF COMMITTEES. The Board of Directors
by resolution may create committees, each consisting of one or more directors,
which committees shall hold office for such time and have such powers and
perform such duties as may from time to time be assigned to them by the Board of
Directors. Four committees have previously been
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formed: the executive committee, the compensation committee, the audit committee
and the nominating and governance committee.
SECTION 4.2. EXECUTIVE COMMITTEE. The executive committee
shall have all the powers of the Board of Directors in the management of the
normal and ordinary business and affairs of the Corporation at all times when
the Board of Directors is not in session. The executive committee shall have the
following specific powers to:
(a) review and approve business plans of subsidiaries and make
recommendations concerning such plans to the appropriate subsidiary board of
directors; and
(b) delegate authority to one or more persons to act on behalf
of the Corporation or its subsidiaries, whether pursuant to a power of attorney
or otherwise, and to establish policies regarding such delegations of authority.
SECTION 4.3. COMPENSATION COMMITTEE. The compensation
committee shall have the duties to recommend to the Board of Directors: (a) the
base salary or wage ranges of all employees; (b) the amounts and forms of
compensation, including fringe benefits and bonuses, as well as stock options
and incentive compensation rights that apply or may apply to employees; (c) the
adoption and implementation of any new or modified forms of compensation; (d)
the suspension, elimination or restriction of any presently existing forms of
compensation; and (e) plans concerning the orderly succession of officers and
key management personnel. In addition, the compensation committee shall have the
duties outlined in its written charter as in effect from time to time and as
approved by the Board of Directors and may delegate authority to one or more
persons to act on its behalf, whether pursuant to a power of attorney or
otherwise, and in a manner consistent with the Corporation's establish policies
regarding such delegations of authority.
SECTION 4.4. AUDIT COMMITTEE. None of the members of the audit
committee shall be directly involved in the supervision or management of the
financial affairs of this Corporation or any of its subsidiaries.
(a) The books, records, and accounts of the Corporation may be
audited periodically by independent public accountants. In connection with the
audit process, the audit committee shall have the duties outlined in its written
charter as in effect from time to time and as approved by the Board of
Directors.
(b) The audit committee shall meet periodically with the staff
responsible for the Corporation's financial and accounting matters to review and
discuss the scope of internal accounting procedures and controls then in effect
and the extent to which any recommendations made by the independent public
accountants or any internal auditors have been implemented.
(c) The audit committee shall direct and supervise any
investigation into any matter brought to its attention within the scope of its
duties which it believes is necessary. The audit committee may retain outside
consultants in connection with any such investigation.
(d) The audit committee shall monitor business practices of the
Corporation as set forth in the written policies of the Corporation, such as
compliance with antitrust policies and
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other policies, as directed by the Board of Directors.
(e) The audit committee may delegate authority to one or more
persons to act on its behalf, whether pursuant to a power of attorney or
otherwise, and in a manner consistent with the Corporation's establish policies
regarding such delegations of authority.
SECTION 4.5 NOMINATING AND GOVERNANCE COMMITTEE. The
nominating and governance committee shall have the duties to: (a) consider and
make recommendations to the Board of Directors concerning the appropriate size,
functions and policies of the Board of Directors; (b) recommend to the Board of
Directors the size and functions of the various committees of the Board of
Directors; (c) recommend to the Board of Directors corporate governance
principles for the Company. In addition, the nominating and governance committee
shall have the duties outlined in its written charter as in effect from time to
time and as approved by the Board of Directors and may delegate authority to one
or more persons to act on its behalf, whether pursuant to a power of attorney or
otherwise, and in a manner consistent with the Corporation's establish policies
regarding such delegations of authority.
SECTION 4.6 LIMITATIONS ON POWERS. Limitations on the powers
of committees of the Board of Directors shall be governed by Section 141(c)(2)
of the Delaware General Corporation Law. In addition, no committee shall act
contrary to a fundamental policy or method of conducting the business of the
Corporation. No committee shall have the specific powers conferred upon any
other committee by these By-laws.
SECTION 4.7 GENERAL. Any committee member may be removed by
the Board of Directors at any time without cause. The Board of Directors may
designate a chairman of a committee. The following provisions of the By-laws,
which are applicable to the Board of Directors, shall also govern each Board of
Directors committee: Section 3.4 (vacancies), Section 3.10 (waiver of notice),
Section 3.11 (telephone participation), Section 3.12 (quorum and voting), and
Section 3.13 (action without a meeting). Each committee may adopt its own rules
of procedure and such rules may govern the call, time, place, and notice of
meetings. Each committee may keep appropriate minutes of such proceedings and
shall report all significant actions at regular meetings of the Board of
Directors.
ARTICLE V.
OFFICERS
SECTION 5.1. NUMBER. The officers of the Corporation shall
include a President and a Secretary. The Board of Directors may elect additional
officers and appoint agents as it determines necessary. Any two or more offices
may be held by the same person, except the offices of President and Secretary.
The Board of Directors in its discretion may also elect one or more Chairman of
the Board and one or more Vice Chairman.
SECTION 5.2. ELECTION AND QUALIFICATION. The President and
Secretary shall be elected at the annual meeting of the Board of Directors.
Other officers may be elected by the Board of Directors from time to time. The
Chairman of the Board, if any, shall be
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a director of the Corporation, and should he cease to be a director, he shall
IPSO FACTO cease to be such officer.
SECTION 5.3. TERM. Each officer shall hold office until his
successor is elected and qualified or until his earlier resignation or removal.
Any officer may resign at any time upon written notice to the Corporation.
SECTION 5.4. REMOVAL. Any officer elected by the Board of
Directors may be removed by a majority of the members of the whole Board of
Directors whenever, in their judgment, the best interest of the Corporation
would be served thereby. No elected officer shall have any contractual rights
against the Corporation for compensation by virtue of such election beyond the
date of the election of his successor, his death, his resignation or his
removal, whichever event shall first occur, except as otherwise provided in an
employment contract or under an employee deferred compensation plan.
SECTION 5.5. VACANCY. Any vacancy in any office from any cause
may be filled for the unexpired portion of the term by the Board of Directors.
SECTION 5.6. CHAIRMAN OF THE BOARD. The Chairman of the Board
shall be a director and shall preside at all meetings of the Board of Directors
at which he shall be present, and shall have such power and perform such duties
as may from time to time be assigned to him by the Board of Directors.
SECTION 5.7. VICE CHAIRMAN OF THE BOARD. Any Vice Chairman of
the Board shall be a director or shall have been a director holding the title of
Vice Chairman. If any Vice Chairman of the Board is at the applicable time a
director, he shall preside at all meetings of the Board of Directors at which a
Chairman shall not be present, and shall have such power and perform such duties
as may from time to time be assigned to him by the Board of Directors.
SECTION 5.8. CHIEF EXECUTIVE OFFICER. The Chief Executive
Officer shall, when present, preside at all meetings of the stockholders, and,
in the absence of the Chairman of the Board and any Vice Chairman of the Board,
or upon motion of the Board of Directors, at meetings of the Board of Directors.
He shall have power to call special meetings of the stockholders, of the Board
of Directors or of the Executive Committee at any time. He shall be the chief
executive officer of the Corporation, and shall have the general direction of
the business, affairs and property of the Corporation, and of its several
officers and shall have and exercise all such powers and discharge such duties
as usually pertain thereto.
SECTION 5.9. PRESIDENT. The President shall be the chief
operating officer of the Corporation and shall have and exercise all such powers
and discharge such duties as usually pertain to the office of President. In the
absence of the Chief Executive Officer, the Chairman of the Board and any Vice
Chairman, the President, when present, will preside at all meetings of the
stockholders, and, if he is a director, in the absence of the Chairman of the
Board, any Vice Chairman of the Board and the Chief Executive Officer, at
meetings of the Board of Directors. He shall have power to call special meetings
of the stockholders, of the Board of Directors or of the Executive Committee at
any time.
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SECTION 5.10. VICE-PRESIDENTS. The Vice-Presidents, if any, or
any of them, shall, subject to the direction of the Board of Directors, at the
request of the Chief Executive Officer of the President or in his absence, or in
case of his inability to perform his duties from any cause, perform the duties
of the President, and, when so acting, shall have all the powers of, and be
subject to all restrictions upon, the President. The Vice-Presidents shall also
perform such other duties as may be assigned to them by the Board of Directors,
and the Board of Directors may determine the order of priority among them. For
purposes of these By-laws, Vice-Presidents shall include any officer with the
title Vice-President along with any suffix, including, without limitation
Executive, Group or Senior.
SECTION 5.11. SECRETARY. The Secretary shall perform such
duties as are incident to the office of Secretary, or as may from time to time
be assigned to him by the Board of Directors, or as are prescribed by these
By-laws.
SECTION 5.12.. TREASURER. The Treasurer shall perform such
duties and have powers as are usually incident to the office of Treasurer or
which may be assigned to him by the Board of Directors.
SECTION 5.13. COMPENSATION. The compensation of all officers
shall be fixed by the Board of Directors. An officer who is also a director may
be compensated in both capacities.
SECTION 5.14. BONDING. Any officer, agent or employee of the
Corporation, if so required by the Board of Directors, shall be bonded for the
faithful performance of his duties, with such penalties, conditions and security
as the Board of Directors may require.
ARTICLE VI.
STOCK
SECTION 6.1. STOCK CERTIFICATES. Shares of the Corporation's
stock may be certificated or uncertificated, as provided under Delaware law. All
certificates of stock of the Corporation shall be numbered and shall be entered
in the books of the Corporation as they are issued. They shall exhibit the
holder's name and number of shares and shall be signed by the Chairman or a Vice
Chairman or the President or a Vice President and by the Treasurer or an
Assistant Treasurer or the Secretary or an Assistant Secretary. Any or all of
the signatures on the certificate may be a facsimile.
SECTION 6.2. TRANSFER OF STOCK. Transfers of stock shall be
made on the books of the Corporation only by the record holder of such stock, or
by attorney lawfully constituted in writing, and, in the case of stock
represented by a certificate, upon surrender of the certificate. However, the
requirements of any applicable stock transfer restriction agreement must also be
satisfied.
SECTION 6.3. LOST CERTIFICATES. The Corporation shall issue a
new stock certificate in place of a certificate previously issued, if the
holder: (a) claims by affidavit that the certificate has been lost, destroyed,
or stolen; and (b) gives the Corporation a bond or other indemnity as the
directors determine appropriate.
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SECTION 6.4. REGISTERED STOCKHOLDERS. The person in whose name
shares are registered in the Corporation's stock ledger shall be deemed by the
Corporation to be the owner of those shares for all purposes. The Corporation
shall not be required to recognize any equitable or other claim or interest in
such shares by any other person, whether or not it has actual or other notice of
such claim.
ARTICLE VII.
MISCELLANEOUS
SECTION 7.1. SEAL. The corporate seal shall contain the name of
the Corporation as well as the words "Corporate Seal" and "Delaware".
SECTION 7.2. FISCAL YEAR. The fiscal year of the Corporation
shall be determined by resolution of the Board of Directors.
SECTION 7.3. CONTRACTS, ETC. The directors shall determine by
resolution which persons shall be empowered to sign contracts, bids, proposals,
certificates and other instruments of the Corporation. Such authority may be
general or confined to specific instances.
SECTION 7.4. CHECKS, ETC. All checks or demands for money and
notes of the Corporation shall be signed by such officer or officers or such
other person or persons as the Board of Directors may from time to time
designate.
SECTION 7.5. DIVIDENDS. Dividends upon the capital stock of
the Corporation, subject to the provisions of the Corporation's Restated
Certificate of Incorporation, may be declared by the Board of Directors or a
committee of the Board of Directors at any regular or special meeting, pursuant
to law. Dividends may be paid in cash, in property or in shares of the capital
stock.
SECTION 7.6. RESERVES. Before payment of any dividend there
may be set aside out of any funds of the Corporation available for dividends
such sum or sums as the directors from time to time, in their absolute
discretion, determine proper as a reserve fund to meet contingencies, or for
repairing or maintaining any property of the Corporation or for such other
purpose as the directors shall think conducive to the interest of the
Corporation, and the directors may abolish any such reserve in the manner in
which it was created.
SECTION 7.7. VOTING STOCK OF OTHER CORPORATIONS. Except as
otherwise ordered by the Board of Directors, the Chairman of the Board or the
Chief Executive Officer or the President or any Vice President shall have full
power on behalf of the Corporation to attend and to act and to vote at any
meeting of the stockholders of any other corporation of which the Corporation is
a stockholder and to execute a proxy to any other person to represent the
Corporation at any such meeting.
ARTICLE VIII.
INDEMNIFICATION
SECTION 8.1. NON-DERIVATIVE SUITS. The Corporation shall
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending
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or complete action, suit or proceeding, whether civil, criminal, administrative,
or investigative (other than an action by or in the right of the Corporation),
by reason of the fact that he is or was a director, officer, employee or agent
of the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonable believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe his conduct was unlawful.
SECTION 8.2. DERIVATIVE SUITS. The Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that he is
or was a director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection with the defense or settlement of such action or
suit if he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interest of the Corporation and except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper.
SECTION 8.3. EXTENT OF INDEMNIFICATION. To the extent that a
director, officer, employee or agent of the Corporation has been successful on
the merits or otherwise in defense of any action, suit or proceeding referred to
in Section 8.1 or 8.2 above, or in defense of any claim, issue or matter
therein, he shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection therewith.
SECTION 8.4. APPROVAL OF INDEMNIFICATION. Any indemnification
under Section 8.1 or 8.2 above (unless ordered by a court) shall be made by the
Corporation only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in the
circumstances because he has met the applicable standard of conduct set forth in
Section 8.1 or 8.2 above. Such determination shall be made (1) by the Board of
Directors by a majority vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding, (2) if such a quorum is not
obtainable, or, even if obtainable, a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion or (3) by the
affirmative vote of the holders of 51% of the outstanding shares of Common Stock
of the Corporation.
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SECTION 8.5. ADVANCES. Expenses (including attorneys' fees)
incurred in defending a civil, criminal, administrative or investigative action,
suit or proceeding shall be paid by the Corporation in advance of the final
disposition of such action, suit or proceeding upon receipt of an undertaking by
or on behalf of the director, officer, employee or agent to repay such amount,
if it shall ultimately be determined that he is not entitled to be indemnified
by the Corporation as authorized in this Article VIII.
SECTION 8.6. NON-EXCLUSIVITY. The indemnification and
advancement of expenses provided by, or granted pursuant to, this Article VIII
shall not be deemed exclusive of any other rights to which any person seeking
indemnification may be entitled under any By-law, agreement, vote of
stockholders or disinterested director or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such person.
SECTION 8.7. INSURANCE. The Corporation shall have power to
purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the Corporation, or is or was serving at
the request of the Corporation as director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against any liability asserted against him and incurred by him in any such
capacity or arising out of his status as such, whether or not the Corporation
would have the power to indemnify him against such liability under the
provisions of this Section 8.7 or under the provisions of any applicable law or
regulation.
ARTICLE IX.
AMENDMENTS
SECTION 9.1. These By-laws may be repealed, altered, amended
or rescinded and new by-laws may be adopted by the majority vote of the Board of
Directors or by the affirmative vote of sixty-six and two-thirds percent
(66-2/3%) of the outstanding stock entitled to vote thereon.
Dated: May 15, 2006
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