Exhibit 3.2
BY-LAWS
OF
GOAMERICA, INC.
(a Delaware corporation)
(As Amended and Restated on September 12, 2007)
ARTICLE I
Stockholders
SECTION 1. Annual Meetings. The annual meeting of stockholders for the election
of directors and for the transaction of such other business as may properly come
before the meeting shall be held each year at such date and time, within or
without the State of Delaware, as the Board of Directors shall determine.
SECTION 2. Special Meetings.
(a) Special meetings of stockholders for the transaction of such business
as may properly come before the meeting may be called by order of the Board of
Directors or by stockholders holding together at least a majority of all the
shares of the Corporation entitled to vote at the meeting.
(b) Notwithstanding the provisions of Section 2(a), immediately following
the consummation of a public offering by the Corporation of any of its capital
stock, special meetings of stockholders may be called only by the President, the
Chairman of the Board of Directors (if any) or by order of a majority of the
Board of Directors.
(c) Any such meeting held pursuant to this Section 2 shall be held at such
date and time, within or without the State of Delaware, as may be specified by
such order. Whenever the directors shall fail to fix such place, the meeting
shall be held at the principal executive office of the Corporation.
SECTION 3. Notice of Meetings. Written notice of all meetings of the
stockholders, stating the place, date and hour of the meeting and the place
within the city or other municipality or community at which the list of
stockholders may be examined, shall be mailed or delivered to each stockholder
not less than 10 nor more than 60 days prior to the meeting. Notice of any
special meeting shall state in general terms the purpose or purposes for which
the meeting is to be held and the business transacted at any such meeting shall
be limited to matters relating to the purpose or purposes set forth in the
notice of meeting.
SECTION 4. 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 nor less than ten 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 days after 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 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 5. Stockholder Lists. The officer who has charge of the stock ledger of
the Corporation shall prepare and make, at least 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, 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. The stock
ledger shall be the only evidence as to who are the stockholders entitled to
examine the stock ledger, the list required by this section or the books of the
Corporation, or to vote in person or by proxy at any meeting of stockholders.
-2-
SECTION 6. Quorum. Except as otherwise provided by law or the Corporation's
Certificate of Incorporation, a quorum for the transaction of business at any
meeting of stockholders shall consist of the holders of record of a majority of
the issued and outstanding shares of the capital stock of the Corporation
entitled to vote at the meeting, present in person or by proxy. 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, until a quorum shall have been
obtained. When a quorum is once present it is not broken by the subsequent
withdrawal of any stockholder.
SECTION 7. Organization. Meetings of stockholders shall be presided over by the
Chairman, if any, or if none or in the Chairman's absence the Vice- Chairman, if
any, or if none or in the Vice-Chairman's absence the President, if any, or if
none or in the President's absence a Vice-President, or, if none of the
foregoing is present, by a chairman to be chosen by the stockholders entitled to
vote who are present in person or by proxy at the meeting. The Secretary of the
Corporation, or in the Secretary's absence an Assistant Secretary, shall act as
secretary of every meeting, but if neither the Secretary nor an Assistant
Secretary is present, the presiding officer of the meeting shall appoint any
person present to act as secretary of the meeting.
SECTION 8. Voting; Proxies; Required Vote.
(a) At each meeting of stockholders, every stockholder shall be entitled
to vote in person or 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),
and, unless the Certificate of Incorporation provides otherwise, shall have one
vote for each share of stock entitled to vote registered in the name of such
stockholder on the books of the Corporation on the applicable record date fixed
pursuant to these By-laws. At all elections of directors the voting may but need
not be by ballot and a plurality of the votes cast there 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
Certificate of Incorporation, these By-laws, 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.
(b) Any action required or permitted to be taken at any meeting of
stockholders may, except as otherwise required by law or the Certificate of
Incorporation, be taken without a meeting, without prior notice and without a
vote, if a consent in writing, setting forth the action so taken, shall be
signed by the holders of record of the issued and outstanding capital stock of
the Corporation having a majority 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 the writing or writings are filed with the permanent
records of the Corporation. Prompt notice of the taking of corporate action
without a meeting by less than unanimous written consent shall be given to those
stockholders who
-3-
have not consented in writing. Notwithstanding the provisions of this Section
8(b), immediately following the consummation of a public offering by the
Corporation of any of its capital stock, stockholders of the Corporation may not
take any action by written consent in lieu of a meeting. Notwithstanding any
other provision of law, the Certificate of Incorporation or these By-laws, and
notwithstanding the fact that a lesser percentage may be specified by law, the
affirmative vote of the holders of at least eighty percent (80%) of the voting
power of all the then outstanding shares of the capital stock of the Corporation
entitled to vote generally in the election of directors, voting together as a
single class, shall be required to amend or repeal, or to adopt any provision
inconsistent with, this Section 8(b).
(c) Where a separate vote by a class or classes, present in person or
represented by proxy, shall constitute a quorum entitled to vote on that matter,
the affirmative vote of the majority of shares of such class or classes present
in person or represented by proxy at the meeting shall be the act of such class,
unless otherwise provided in the Corporation's Certificate of Incorporation.
SECTION 9. Inspectors. Unless otherwise required by law, the Board of Directors,
in advance of any meeting, may, but need not, appoint one or more inspectors of
election to act at the meeting or any adjournment thereof. If an inspector or
inspectors are not so appointed, the person presiding at the meeting may, but
need not, appoint one or more inspectors. In case any person who may be
appointed as an inspector fails to appear or act, the vacancy may be filled by
appointment made by the directors in advance of the meeting or at the meeting by
the person presiding thereat. Each inspector, if any, before entering upon the
discharge of his or her duties, shall take and sign an oath faithfully to
execute the duties of inspector at such meeting with strict impartiality and
according to the best of his ability. The inspectors, if any, shall determine
the number of shares of stock outstanding and the voting power of each, the
shares of stock represented at the meeting, the existence of a quorum, and the
validity and effect of proxies, and shall receive votes, ballot or consents,
hear and determine all challenges and questions arising in connection with the
right to vote, count and tabulate all votes, ballots or consents, determine the
result, and do such acts as are proper to conduct the election or vote with
fairness to all stockholders. On request of the person presiding at the meeting,
the inspector or inspectors, if any, shall make a report in writing of any
challenge, question or matter determined by such inspector or inspectors and
execute a certificate of any fact found by such inspector or inspectors.
SECTION 10. Nominating and Proposal Procedures. Without limiting any other
notice requirements imposed by law, the Certificate of Incorporation or these
By-laws, any nomination for election to the Board of Directors or other proposal
to be presented by any stockholder at a stockholders' meeting (the "Proponent")
will be properly presented only if written notice of the Proponent's intent to
make such nomination or proposal has been personally delivered to and otherwise
in fact received by the Secretary of the Corporation not later than (i) for the
annual meeting, at least 150 days prior to the anniversary date of the prior
year's annual meeting, or (ii) for any special meeting, the close of business on
the tenth day after notice of such meeting is first given to stockholders;
provided,
-4-
however, that nothing contained herein shall limit or restrict the right of any
stockholder to present at a stockholders' meeting any proposal made by such
stockholder in accordance with Rule 14a-8 promulgated pursuant to the Securities
Exchange Act of 1934, as amended, as it may hereafter be amended, or any
successor rule. Such notice by the Proponent to the Corporation shall set forth
in reasonable detail information concerning the nominee (in the case of a
nomination for election to the Board of Directors) or the substance of the
proposal (in the case of any other stockholder proposal), and shall include: (a)
the name and residence address and business address of the stockholder who
intends to present the nomination or other proposal or of any person who
participates or is expected to participate in making such nomination and of the
person or persons, if any, to be nominated and the principal occupation or
employment and the name, type of business and address of the business,
corporation or other organization in which such employment is carried on of each
such stockholder, participant and nominee; (b) a representation that the
Proponent 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
present the nomination or other proposal specified in the notice; (c) a
description of all arrangements or understandings between the Proponent and any
other person or persons (naming such person or persons) pursuant to which the
nomination or other proposal is to be made by the Proponent; (d) such other
information regarding each proposal and each nominee as would have been required
to be included in a proxy statement filed pursuant to the proxy rules of the
Securities and Exchange Commission had the nomination or other proposal been
made by the Board of Directors; and (e) the consent of each nominee, if any, to
serve as a director of the Corporation if elected. Within fifteen (15) days
following the receipt by the Secretary of a notice of nomination or proposal
pursuant hereto, the Secretary shall advise the Proponent in writing of any
deficiencies in the notice and of any additional information the Corporation is
requiring to determine the eligibility of the proposed nominee or the substance
of the proposal. A Proponent who has been notified of deficiencies in the notice
of nomination or proposal and/or of the need for additional information shall
cure such deficiencies and/or provide such additional information within fifteen
(15) days after receipt of the notice of such deficiencies and/or the need for
additional information. The presiding officer of a meeting of stockholders may,
in his or her sole discretion, refuse to acknowledge a nomination or other
proposal presented by any person that does not comply with the foregoing
procedure and, upon his or her instructions, all votes cast for such nominee or
with respect to such proposal may be disregarded.
-5-
ARTICLE II
Board of Directors
SECTION 1. General Powers. The business, property and affairs of the Corporation
shall be managed by, or under the direction of, the Board of Directors.
SECTION 2. Qualification; Number; Term; Remuneration.
(a) Each director shall be at least 18 years of age. A director need not
be a stockholder, a citizen of the United States, or a resident of the State of
Delaware. The number of directors constituting the entire Board shall be such
number as may be fixed from time to time by action of the stockholders or Board
of Directors, but in no event less than one, one of whom may be selected by the
Board of Directors to be its Chairman. The use of the phrase "entire Board"
herein refers to the total number of directors which the Corporation would have
if there were no vacancies.
(b) Directors who are elected at an annual meeting of stockholders, and
directors who are elected in the interim to fill vacancies and newly created
directorships, shall hold office until the next annual meeting of stockholders
and until their successors are duly elected and qualified or until their earlier
resignation or removal; provided, however, that, immediately following the
consummation of a public offering by the Corporation of any of its capital
stock, the Board of Directors of the Company shall be divided into three classes
(as nearly equal in number as possible), which are hereby designated Class A,
Class B and Class C, respectively. The term of office of the initial Class A
Directors shall expire at the first annual meeting of stockholders or any
special meeting in lieu thereof following such public offering, the term of
office of the initial Class B Directors shall expire at the second annual
meeting of stockholders or any special meeting in lieu thereof following such
public offering, and the term of office of the initial Class C Directors shall
expire at the third annual meeting of stockholders or any special meeting in
lieu thereof following such public offering. At each annual meeting of
stockholders or special meeting in lieu thereof after the initial classification
of Directors, Directors elected to succeed those Directors whose terms expire
shall be elected for a term of office to expire at the third succeeding annual
meeting of stockholders or special meeting in lieu thereof after their election
and until their successors are duly elected and qualified. Upon the addition of
any one or more new Directors to the Board of Directors, which new Director is
not a successor to any then current Director, each such new Director shall be
added in turn first to Class A, then to Class B, then to Class C, provided,
however, that the addition of any new Director to one particular class may be
modified if such modification serves to more evenly distribute the number of
Directors in all such classes.
(c) Directors may be paid their expenses, if any, of attendance at each
meeting of the Board of Directors and may be paid a fixed sum for attendance at
each meeting of the Board of Directors or a stated salary as director. No such
payment shall preclude any director from serving the Corporation in any other
capacity and receiving compensation
-6-
therefor. Members of special or standing committees may be allowed like
compensation for attending committee meetings.
SECTION 3. Quorum and Manner of Voting. Except as otherwise provided by law, a
majority of the entire Board shall constitute a quorum. A majority of the
directors present, whether or not a quorum is present, may adjourn a meeting
from time to time to another time and place without notice. 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.
SECTION 4. Places of Meetings. Meetings of the Board of Directors may be held at
any place within or without the State of Delaware, as may from time to time be
fixed by resolution of the Board of Directors, or as may be specified in the
notice of meeting.
SECTION 5. Annual Meeting. Following the annual meeting of stockholders, the
newly elected Board of Directors shall meet for the purpose of the election of
officers and the transaction of such other business as may properly come before
the meeting. Such meeting may be held without notice immediately after the
annual meeting of stockholders at the same place at which such stockholders'
meeting is held.
SECTION 6. Regular Meetings. Regular meetings of the Board of Directors shall be
held at such times and places as the Board of Directors shall from time to time
by resolution determine. Notice need not be given of regular meetings of the
Board of Directors held at times and places fixed by resolution of the Board of
Directors. Where appropriate communication facilities are reasonably available,
any or all Directors shall have the right to participate in all or any part of a
meeting of the Board of Directors, or any Committee thereof, by means of
conference telephone or any means of communication by which all persons
participating in the meeting are able to hear each other.
SECTION 7. Special Meetings. Special meetings of the Board of Directors shall be
held whenever called by the Chairman of the Board, President, Vice-Chairman or
by a majority of the directors then in office.
SECTION 8. Notice of Special Meetings. A notice of the place, date and time and
the purpose or purposes of each special meeting of the Board of Directors shall
be given to each director by mailing the same at least two days before the
special meeting, or by telegraphing or telephoning the same or by delivering the
same personally not later than the day before the day of the meeting.
SECTION 9. Organization. At all meetings of the Board of Directors, the
Chairman, if any, or if none or in the Chairman's absence or inability to act
the President, or in the President's absence or inability to act any Vice-
President who is a member of the Board of Directors, or in such Vice-President's
absence or inability to act a chairman chosen by the directors, shall preside.
The Secretary of the Corporation shall act as secretary at all meetings of the
Board of Directors when present, and, in the Secretary's absence, the presiding
officer may appoint any person to act as secretary.
-7-
SECTION 10. Resignation; Removal. Any director may resign at any time upon
written notice to the Corporation and such resignation shall take effect upon
receipt thereof by the President or Secretary, unless otherwise specified in the
resignation. Any or all of the directors may be removed, with or without cause,
by the holders of a majority of the shares of stock outstanding and entitled to
vote for the election of directors.
SECTION 11. Vacancies. Unless otherwise provided in these By-laws, vacancies on
the Board of Directors, whether caused by resignation, death, disqualification,
removal, an increase in the authorized number of directors or otherwise, may be
filled by the affirmative vote of a majority of the remaining directors,
although less than a quorum, or by a sole remaining director, or at a special
meeting of the stockholders, by the holders of shares entitled to vote for the
election of directors.
SECTION 12. Action by Written Consent. Any action required or permitted to be
taken at any meeting of the Board of Directors may be taken without a meeting if
all the directors consent thereto in writing, and the writing or writings are
filed with the minutes of proceedings of the Board of Directors.
ARTICLE III
Committees
SECTION 1. Appointment. From time to time the Board of Directors, by a
resolution adopted by a majority of the entire Board, may appoint any committee
or committees for any purpose or purposes, to the extent lawful, which shall
have powers as shall be determined and specified by the Board of Directors in
the resolution of appointment.
SECTION 2. Procedures, Quorum and Manner of Acting. Each committee shall fix its
own rules of procedure, and shall meet where and as provided by such rules or by
resolution of the Board of Directors. Except as otherwise provided by law, the
presence of a majority of the then appointed members of a committee shall
constitute a quorum for the transaction of business by that committee, and in
every case where a quorum is present the affirmative vote of a majority of the
members of the committee present shall be the act of the committee. Each
committee shall keep minutes of its proceedings, and actions taken by a
committee shall be reported to the Board of Directors.
SECTION 3. Action by Written Consent. Any action required or permitted to be
taken at any meeting of any committee of the Board of Directors may be taken
without a meeting if all the members of the committee consent thereto in
writing, and the writing or writings are filed with the minutes of proceedings
of the committee.
SECTION 4. Term; Termination. In the event any person shall cease to be a
director of the Corporation, such person shall simultaneously therewith cease to
be a member of any committee appointed by the Board of Directors.
-8-
ARTICLE IV
Officers
SECTION 1. Officers. The Corporation shall have as officers, a Chairman of the
Board, a President, a Chief Financial Officer, a Secretary and a Treasurer. The
Corporation may also have, at the discretion of the Board of Directors, one or
more Vice Presidents, one or more assistant secretaries, one or more assistant
treasurers and such other officers as the Board may from time to time deem
proper. Any two or more offices may be held by the same person except the
offices of the President and Secretary.
SECTION 2. Election of Officers. The officers of the Corporation shall be chosen
by the Board of Directors.
SECTION 3. Term of Office and Remuneration. The term of office of all officers
shall be one year and until their respective successors have been elected and
qualified, but any officer may be removed from office, either with or without
cause, at any time by the Board of Directors. Any vacancy in any office arising
from any cause may be filled for the unexpired portion of the term by the Board
of Directors. The remuneration of all officers of the Corporation may be fixed
by the Board of Directors or in such manner as the Board of Directors shall
provide.
SECTION 4. Resignation; Removal. Any officer may resign at any time upon written
notice to the Corporation and such resignation shall take effect upon receipt
thereof by the President or Secretary, unless otherwise specified in the
resignation. Any officer shall be subject to removal, with or without cause, at
any time by vote of a majority of the entire Board.
SECTION 5. Chairman of the Board. The Chairman of the Board of Directors, if
there be one, shall preside at all meetings of the Board of Directors and shall
have such other powers and duties as may from time to time be assigned by the
Board of Directors.
SECTION 6. President. The President shall have general management and
supervision of the property, business and affairs of the Corporation and over
its other officers; may appoint and remove assistant officers and other agents
and employees, other than officers referred to in Section 1 of this Article IV;
and may execute and deliver in the name of the Corporation powers of attorney,
contracts, bonds and other obligations and instruments.
SECTION 7. Vice-President. A Vice-President may execute and deliver in the name
of the Corporation contracts and other obligations and instruments pertaining to
the regular course of the duties of said office, and shall have such other
authority as from time to time may be assigned by the Board of Directors or the
President.
-9-
SECTION 8. Chief Financial Officer.
(a) The Chief Financial Officer shall keep, or cause to be kept, the books
and records of account of the Corporation.
(b) The Chief Financial Officer shall deposit all monies and other
valuables in the name and to the credit of the Corporation with such
depositories as may be designated from time to time by resolution of the Board
of Directors. He or she shall disburse the funds of the Corporation as may be
ordered by the Board of Directors, shall render to the President and the Board,
whenever they request it, an account of all of his transactions as Chief
Financial Officer and of the financial condition of the Corporation, and shall
have such other powers and perform such other duties as may be prescribed from
time to time by the Board or as the President may from time to time delegate.
SECTION 9. Treasurer. The Treasurer shall in general have all duties incident to
the position of Treasurer and such other duties as may be assigned by the Board
of Directors or the President.
SECTION 10. Secretary. The Secretary shall in general have all the duties
incident to the office of Secretary and such other duties as may be assigned by
the Board of Directors or the President.
SECTION 11. Assistant Officers. Any assistant officer shall have such powers and
duties of the officer such assistant officer assists as such officer or the
Board of Directors shall from time to time prescribe.
ARTICLE V
Books and Records
SECTION 1. Location. The books and records of the Corporation may be kept at
such place or places within or outside the State of Delaware as the Board of
Directors or the respective officers in charge thereof may from time to time
determine. The record books containing the names and addresses of all
stockholders, the number and class of shares of stock held by each and the dates
when they respectively became the owners of record thereof shall be kept by the
Secretary as prescribed in the By-laws and by such officer or agent as shall be
designated by the Board of Directors.
SECTION 2. Addresses of Stockholders. Notices of meetings and all other
corporate notices may be delivered personally or mailed to each stockholder at
the stockholder's address as it appears on the records of the Corporation.
-10-
ARTICLE VI
Certificates Representing Stock
SECTION 1. Certificates; Signatures. The shares of the Corporation shall be
represented by certificates, provided that the Board of Directors of the
Corporation may provide by resolution or resolutions that some or all of any or
all classes or series of its stock shall be uncertificated shares. Any such
resolution shall not apply to shares represented by a certificate until such
certificate is surrendered to the Corporation. Notwithstanding the adoption of
such a resolution by the Board of Directors, every holder of stock represented
by certificates and upon request every holder of uncertificated shares 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, or the President or
Vice-President, and by the Treasurer or an Assistant Treasurer, or the Secretary
or an Assistant Secretary of the Corporation, representing the number of shares
registered in certificate form. Any and all signatures on any such certificate
may be facsimiles. 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 he were such officer, transfer agent or registrar at the date of issue.
The name of the holder of record of the shares represented thereby, with the
number of such shares and the date of issue, shall be entered on the books of
the Corporation.
SECTION 2. Transfers of Stock. Upon compliance with provisions restricting the
transfer or registration of transfer of shares of stock, if any, shares of
capital stock shall be transferable on the books of the Corporation only by the
holder of record thereof in person, or by duly authorized attorney, upon
surrender and cancellation of certificates for a like number of shares, properly
endorsed, and the payment of all taxes due thereon.
SECTION 3. Fractional Shares. The Corporation may, but shall not be required to,
issue certificates for fractions of a share where necessary to effect authorized
transactions, or the Corporation may pay in cash the fair value of fractions of
a share as of the time when those entitled to receive such fractions are
determined, or it may issue scrip in registered or bearer form over the manual
or facsimile signature of an officer of the Corporation or of its agent,
exchangeable as therein provided for full shares, but such scrip shall not
entitle the holder to any rights of a stockholder except as therein provided.
The Board of Directors shall have power and authority to make all such rules and
regulations as it may deem expedient concerning the issue, transfer and
registration of certificates representing shares of the Corporation.
SECTION 4. Lost, Stolen or Destroyed Certificates. The Corporation may issue a
new certificate of stock in place of any certificate, theretofore issued by it,
alleged to have been lost, stolen or destroyed, and the Board of Directors may
require the owner of any lost, stolen or destroyed certificate, or his legal
representative, to give the Corporation a bond sufficient to indemnify the
Corporation against any claim that may be made against
-11-
it on account of the alleged loss, theft or destruction of any such certificate
or the issuance of any such new certificate.
ARTICLE VII
Dividends
Subject always to the provisions of law and the Certificate of Incorporation,
the Board of Directors shall have full power to determine whether any, and, if
any, what part of any, funds legally available for the payment of dividends
shall be declared as dividends and paid to stockholders; the division of the
whole or any part of such funds of the Corporation shall rest wholly within the
lawful discretion of the Board of Directors, and it shall not be required at any
time, against such discretion, to divide or pay any part of such funds among or
to the stockholders as dividends or otherwise; and 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 Board of Directors from time to time, in
its absolute discretion, thinks proper as a reserve or reserves to meet
contingencies, or for repairing or maintaining any property of the Corporation,
or for such other purpose as the Board of Directors shall think conducive to the
interest of the Corporation, and the Board of Directors may modify or abolish
any such reserve in the manner in which it was created.
ARTICLE VIII
Ratification
Any transaction, questioned in any law suit on the ground of lack of authority,
defective or irregular execution, adverse interest of director, officer or
stockholder, non-disclosure, miscomputation, or the application of improper
principles of practices of accounting, may be ratified before or after judgment,
by the Board of Directors or by the stockholders, and if so ratified shall have
the same force and effect as if the questioned transaction had been originally
duly authorized. Such ratification shall be binding upon the Corporation and its
stockholders and shall constitute a bar to any claim or execution of any
judgment in respect of such questioned transaction.
ARTICLE IX
Indemnification
SECTION 1. Right to Indemnification. The Corporation shall indemnify and hold
harmless, to the fullest extent permitted by law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be made
a party or is otherwise involved in any action or suit, whether or not by or in
the right of the Corporation, or proceeding, whether civil, criminal,
administrative or investigative
-12-
(collectively, a "proceeding") by reason of the fact that he, or a person for
whom he is the legal representative, 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 or of a
partnership, joint venture, trust, enterprise or nonprofit entity, including
service with respect to employee benefit plans, against all liability and loss,
including judgments, fines, ERISA excise taxes or penalties and amounts paid or
to be paid in settlement, incurred, suffered or paid by or on behalf of such
person, and expenses (including attorneys' fees) reasonably incurred by such
person.
SECTION 2. Prepayment of Expenses. The Corporation shall pay the expenses
(including attorneys' fees) incurred in defending any proceeding in advance of
its final disposition, provided, however, that the payment of expenses incurred
by a director or officer in advance of the final disposition of the proceeding
shall be made only upon receipt of an undertaking by the director or officer to
repay all amounts advanced if it should be ultimately determined that the
director or officer is not entitled to be indemnified under this Article or
otherwise.
SECTION 3. Claims. The right to indemnification and payment of expenses under
the Certificate of Incorporation, these By-laws or otherwise shall be a contract
right. If a claim for indemnification or payment of expenses under this Article
is not paid in full within sixty days after a written claim therefor has been
received by the Corporation, the claimant may file suit to recover the unpaid
amount of such claim and, if successful in whole or in part, shall be entitled
to be paid the expense of prosecuting such claim. In any such action the
Corporation shall have the burden of proving that the claimant was not entitled
to the requested indemnification or payment of expenses under applicable law.
SECTION 4. Non-Exclusivity of Rights. The rights conferred on any person by this
Article shall not be exclusive of any other rights which such person may have or
hereafter acquire under any statute, provision of the Certificate of
Incorporation, these By-laws, agreement, vote of stockholders or disinterested
directors or otherwise.
SECTION 5. Other Indemnification. The Corporation's obligation, if any, to
indemnify any person who was or is serving at its request as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust, enterprise or nonprofit entity shall be reduced by any amount such person
may collect as indemnification from such other corporation, partnership, joint
venture, trust, enterprise or nonprofit enterprise.
SECTION 6. Amendment or Repeal. Any repeal or modification of the foregoing
provisions of this Article IX shall not adversely affect any right or protection
hereunder of any person in respect of any act or omission occurring prior to the
time of such repeal or modification.
-13-
ARTICLE X
Corporate Seal
The corporate seal shall have inscribed thereon the name of the Corporation and
the year of its incorporation, and shall be in such form and contain such other
words and/or figures as the Board of Directors shall determine. The corporate
seal may be used by printing, engraving, lithographing, stamping or otherwise
making, placing or affixing, or causing to be printed, engraved, lithographed,
stamped or otherwise made, placed or affixed, upon any paper or document, by any
process whatsoever, an impression, facsimile or other reproduction of said
corporate seal.
ARTICLE XI
Fiscal Year
The fiscal year of the Corporation shall be that which is determined by the
Board of Directors, and is subject to change by the Board of Directors.
ARTICLE XII
Waiver of Notice
Whenever notice is required to be given by these By-laws or by the Certificate
of Incorporation or by law, a written waiver thereof, signed by the person or
persons entitled to said notice, whether before or after the time stated
therein, shall be deemed equivalent to notice.
ARTICLE XIII
Bank Accounts, Drafts, Contracts, Etc.
SECTION 1. Bank Accounts and Drafts. In addition to such bank accounts as may be
authorized by the Board of Directors, the primary financial officer or any
person designated by said primary financial officer, whether or not an employee
of the Corporation, may authorize such bank accounts to be opened or maintained
in the name and on behalf of the Corporation as he may deem necessary or
appropriate, payments from such bank accounts to be made upon and according to
the check of the Corporation in accordance with the written instructions of said
primary financial officer, or other person so designated by the Treasurer.
-14-
SECTION 2. Contracts. The Board of Directors may authorize any person or
persons, in the name and on behalf of the Corporation, to enter into or execute
and deliver any and all deeds, bonds, mortgages, contracts and other obligations
or instruments, and such authority may be general or confined to specific
instances.
SECTION 3. Proxies; Powers of Attorney; Other Instruments. The Chairman, the
President or any other person designated by either of them shall have the power
and authority to execute and deliver proxies, powers of attorney and other
instruments on behalf of the Corporation in connection with the rights and
powers incident to the ownership of stock by the Corporation. The Chairman, the
President or any other person authorized by proxy or power of attorney executed
and delivered by either of them on behalf of the Corporation may attend and vote
at any meeting of stockholders of any company in which the Corporation may hold
stock, and may exercise on behalf of the Corporation any and all of the rights
and powers incident to the ownership of such stock at any such meeting, or
otherwise as specified in the proxy or power of attorney so authorizing any such
person. The Board of Directors, from time to time, may confer like powers upon
any other person.
SECTION 4. Financial Reports. The Board of Directors may appoint the primary
financial officer or other fiscal officer and/or the Secretary or any other
officer to cause to be prepared and furnished to stockholders entitled thereto
any special financial notice and/or financial statement, as the case may be,
which may be required by any provision of law.
ARTICLE XIV
Amendments
The Board of Directors of the Corporation is expressly authorized to adopt,
amend or repeal the By-laws of the Corporation, subject, however, to any
limitation thereof contained in these By-laws. By-laws adopted by the Board of
Directors may be repealed or changed, and new By-laws made, by the stockholders,
and the stockholders may prescribe that any By-law made by them shall not be
altered, amended or repealed by the Board of Directors. The stockholders also
shall have the power to adopt, amend or repeal the By-laws of the Corporation;
provided, however, that, immediately following the consummation of a public
offering by the Corporation of any of its capital stock, in addition to any vote
of the holders of any class or series of stock of the Corporation required by
law or by the Certificate of Incorporation, the affirmative vote of the holders
of at least eighty percent (80%) of the voting power of all of the then
outstanding shares of the capital stock of the Corporation entitled to vote
generally in the election of directors, voting together as a single class, shall
be required to adopt, amend or repeal any provision of the By-laws of the
Corporation.
-15-