EXHIBIT 3.3
Adopted
September 30, 1999
BY-LAWS
OF
US UNWIRED INC.
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SECTION 1
Offices
1.1 Principal Office. The principal office of the Corporation shall be
located at Hibernia Tower, Suite 1900, One Lakeshore Drive, Lake Charles,
Louisiana.
1.2 Additional Offices. The Corporation may have such offices at such
other places as the Board of Directors may from time to time determine or the
business of the Corporation may require.
SECTION 2
Shareholders' Meetings
2.1 Place of Meetings. Unless otherwise required by law, the Articles of
Incorporation ("Articles") or these By-Laws, all meetings of the shareholders
shall be held at the principal office of the Corporation or at such other place,
within or without the State of Louisiana, as may be designated by the Board of
Directors.
2.2 Annual Meetings; Notice Thereof. An annual meeting of the
shareholders shall be held each year on the date and at the time as the Board of
Directors shall designate, for the purpose of electing directors and for the
transaction of such other business as may be properly brought before the
meeting. If no annual shareholders' meeting is held for a period of eighteen
months, any shareholder may call such meeting to be held at the registered
office of the Corporation as shown on the records of the Secretary of State of
the State of Louisiana.
2.3 Special Meetings. Special meetings of shareholders, for any purpose
or purposes, may be called in any manner set forth in the Articles or By-Laws.
In addition, at any time, upon the written request of any shareholder or group
of shareholders holding in the aggregate at least (i) 60% of the total voting
power of any series or class, the Secretary of the Corporation shall call a
special meeting of shareholders of such series or class, or (ii) 60% of the
total voting power of the Corporation, the Secretary of the Corporation shall
call a special meeting of all shareholders of the
Corporation. Any such special meeting shall be held at the registered office of
the Corporation at such time as the Secretary may fix, not less than 15 nor more
than 60 days after the receipt of said request, and if the Secretary shall
neglect or refuse to fix such time or to give notice of the meeting, the
shareholder or shareholders making the request may do so. Such requests must
state the specific purpose or purposes of the proposed special meeting, and the
business to be conducted thereat shall be limited to such purpose or purposes.
Except as set forth in the Articles or this Section 2.3, shareholders of the
Corporation shall not have the right to call or have called special meetings of
the shareholders.
2.4 Notice of Meetings. Except as otherwise provided by the Articles or
by law, the authorized person or persons calling a shareholders' meeting shall
cause written notice of the time, place and purpose of the meeting to be given
to all shareholders entitled to vote at such meeting, at least 10 days and not
more than 60 days prior to the day fixed for the meeting. Notice of the annual
meeting need not state the purpose or purposes thereof, unless action is to be
taken at the meeting as to which notice is required by law or the By-Laws.
Notice of a special meeting shall state the purpose or purposes thereof, and the
business conducted at any special meeting shall be limited to the purpose or
purposes stated in the notice.
2.5 List of Shareholders. At every meeting of shareholders, a list of
shareholders entitled to vote, arranged alphabetically and certified by the
Secretary or by the agent of the Corporation having charge of transfers of
shares, showing the number and class of shares held by each such shareholder on
the record date for the meeting and confirming the number of votes per share as
to which each such shareholder is entitled, shall be produced on the request of
any shareholder.
2.6 Quorum. Except as may be otherwise provided in the Articles, a
majority of the total votes of any class of Common Stock or any series of
preferred stock shall constitute a quorum with respect to any matter requiring a
vote of such class or series, and a majority of the total votes of any classes
and/or series entitled to vote together as if a single class shall constitute a
quorum with respect to any matter requiring a vote of any such classes and/or
series voting as if a single class.
2.7 Voting. Except as otherwise provided by the Articles or as may be
required by law, the Class A Common Stock and Class B Common Stock shall vote
together as a single class in the election of Directors and with respect to any
other matter for which shareholder action or approval is required by the
Articles or by law, even if action or approval of the Class A or Class B Common
Stock voting on such matter as a separate class is also required. Whether voting
together as a single class or voting by class, as the case may be, the Class A
Common Stock shall have one vote per share, and the Class B Common Stock shall
have ten votes per share.
2.8 Proxies. At any meeting of the shareholders, every shareholder having
the right to vote shall be entitled to vote in person, or by proxy appointed by
an instrument in writing executed by such shareholder and bearing a date not
more than eleven months prior to said meeting, unless said instrument provides
for a longer period, but in no case will an outstanding proxy be valid for
longer than three years from the date of its execution, provided, however, that
in no event may a proxy be voted at a meeting called pursuant to La. R.S. 12:138
unless it is executed and dated by the
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shareholder within 30 days of the date of such meeting. The person appointed as
a proxy need not be a shareholder of the Corporation.
2.9 Adjournments. Adjournments of any annual or special meeting of
shareholders may be taken without new notice being given unless a new record
date is fixed for the adjourned meeting, but any meeting at which directors are
to be elected shall be adjourned only from day to day until such directors shall
have been elected.
2.10 Withdrawal. If a quorum is present or represented at a duly
organized shareholders' meeting, such meeting may continue to do business until
adjournment, notwithstanding the withdrawal of enough shareholders to leave less
than a quorum as fixed in Section 2.6 of these By-Laws, or the refusal of any
shareholders to vote.
2.11 Lack of Quorum. If a meeting cannot be organized because a quorum
has not attended, those present may adjourn the meeting to such time and place
as they may determine, subject, however, to the provisions of Section 2.9
hereof. In the case of any meeting called for the election of directors, those
who attend the second of such adjourned meetings, although less than a quorum as
fixed in Section 2.6 hereof, shall nevertheless be deemed to constitute a quorum
for the purpose of electing directors.
SECTION 3
Directors
3.1 Number. All of the corporate powers shall be vested in, and the
business and affairs of the Corporation shall be managed by a Board of
Directors. Except as otherwise fixed by or pursuant to Article V of the Articles
relating to the rights of the holders of any class or series of stock having a
preference over the Common Stock as to dividends or upon liquidation to elect
additional directors by class vote, the Board of Directors shall consist of
seven natural persons, provided that, if after proxy materials for any meeting
of shareholders at which directors are to be elected are mailed to shareholders
any person or person named therein to be nominated at the direction of the Board
of Directors becomes unable or unwilling to serve, the foregoing number of
authorized directors shall be automatically reduced by a number equal to the
number of such persons unless the Board of Directors selects an additional
nominee or nominees to replace such persons. No director need be a shareholder.
The Secretary shall have the power to certify at any time as to the number of
directors authorized and as to the class to which each director has been elected
or assigned.
3.2 Powers. The Board may exercise all such powers of the Corporation and
do all such lawful acts and things which are not by law, the Articles or these
By-Laws directed or required to be done by the shareholders.
3.3 Classes. The Board of Directors shall be divided, with respect to the
time during which they shall hold office, into three classes as nearly equal in
number as possible, with the initial term of office of Class III directors
expiring at the annual meeting of shareholders to be held in 2000, of Class I
directors expiring at the next succeeding annual meeting of shareholders and of
Class II
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directors expiring at the second succeeding annual meeting of shareholders, with
all such directors to hold office until their successors are elected and
qualified. Any increase or decrease in the number of directors shall be
apportioned by the Board of Directors so that all classes of directors shall be
as nearly equal in number as possible. At each annual meeting of shareholders,
directors chosen to succeed those whose terms then expire shall be elected to
hold office for a term expiring at the annual meeting of shareholders held in
the third year following the year of their election and until successors are
duly elected and qualified.
3.4 General Election. At each annual meeting of shareholders, directors
shall be elected to succeed those directors whose terms then expire. No decrease
in the number of directors constituting the Board of Directors shall shorten the
term of any incumbent director.
3.5 Vacancies. Except as otherwise provided in the Articles or these By-
Laws, (a) the office of a director shall become vacant if he dies, resigns or is
duly removed from office and (b) the Board of Directors may declare vacant the
office of a director if he (i) is interdicted or adjudicated an incompetent,
(ii) is adjudicated a bankrupt, (iii) in the sole opinion of the Board of
Directors becomes incapacitated by illness or other infirmity so that he is
unable to perform his duties for a period of six months or longer, or (iv)
ceases at any time to have the qualifications required by law, the Articles or
these By-Laws.
3.6 Filling Vacancies. Except as otherwise provided in the Articles or
Section 3.8 of these By-Laws, any vacancy on the Board (including any vacancy
resulting from an increase in the authorized number of directors or from failure
of the shareholders to elect the full number of authorized directors) may,
notwithstanding any resulting absence of a quorum of directors, be filled by a
majority vote of the Board of Directors remaining in office, provided that the
shareholders shall have the right, at any special meeting called for such
purpose prior to any such action by the Board, to fill the vacancy. A director
elected pursuant to this section shall serve until the next shareholders'
meeting held for the election of directors of the class to which he shall have
been appointed and until his successor is elected and qualified.
3.7 Notice of Shareholder Nominees. Except as otherwise provided in the
Articles, only persons who are nominated in accordance with the procedures set
forth in this section shall be eligible as directors. Nominations of persons for
election to the Board of Directors may be made at a meeting of shareholders by
or at the direction of the Board of Directors or by any shareholder of record of
the Corporation entitled to vote for the election of directors at the meeting
who complies with the notice procedures set forth in this section. Such
nominations, other than those made by or at the direction of the Board of
Directors, shall be made pursuant to timely notice in writing to the Secretary
of the Corporation. To be timely, a shareholder's notice must be delivered or
mailed and received at the principal office of the Corporation not less than 45
days nor more than 90 days prior to the meeting, provided, however, that in the
event that less than 55 days notice or prior public disclosure of the date of
the meeting is given or made to shareholders, notice by the shareholder to be
timely must be received no later than the close of business on the tenth day
following the day on which such notice of the date of the meeting was mailed or
such public disclosure was made. Such shareholder's notice shall set forth or
include the following:
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a. as to each person whom the shareholder proposes to nominate for
election or re-election as a director (i) the name, age, business address
and residential address of such person, (ii) the principal occupation or
employment of such person, (iii) the class and number of shares of capital
stock of the Corporation of which such person is the beneficial owner (as
defined in Rule 13d-3 promulgated under the Securities Exchange Act of
1934), (iv) such person's written consent to being named in the proxy
statement as a nominee and to serve as a director if elected and (v) any
other information relating to such person that would be required to be
disclosed in solicitations of proxies for election of directors, or would
be otherwise required, in each case pursuant to Regulation 14A under the
Securities Exchange Act of 1934; and
b. as to the shareholder of record giving the notice, (i) the name
and address of such shareholder and (b) the class and number of shares of
capital stock of the Corporation of which such shareholder is the
beneficial owner (as defined in Rule 13d-3 promulgated under the Securities
Exchange Act of 1934). If requested in writing by the Secretary of the
Corporation at least 15 days in advance of the meeting, such shareholder
shall disclose to the Secretary, within 10 days of such request, whether
such person is the sole beneficial owner of the shares held of record by
him, and, if not, the name and address of each other person known by the
shareholder of record to claim or have a beneficial interest in such
shares.
At the request of the Board of Directors, any person nominated by or at the
direction of the Board of Directors for election as a director shall furnish to
the Secretary of the Corporation that information required to be set forth in a
shareholder's notice of nomination which pertains to the nominee. If a
shareholder seeks to nominate one or more persons as directors, the Secretary
shall appoint two inspectors, who shall not be affiliated with the Corporation,
to determine whether the shareholder has complied with this section. If the
inspectors shall determine that the shareholder has not complied with this
section, the defective nomination shall be disregarded and the inspectors shall
direct the Chairman of the meeting to declare at the meeting that such
nomination was not made in accordance with the procedures prescribed by the
Articles and these By-Laws.
3.8 Compensation of Directors. Directors shall receive such compensation
for their services, in their capacity as directors, as may be fixed by
resolution of the Board of Directors, provided, however, that nothing herein
contained shall be construed to preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor.
SECTION 4
Meetings of The Board
4.1 Place of Meetings. The meetings of the Board of Directors may be held
at such place within or without the State of Louisiana as a majority of the
directors may from time to time appoint.
4.2 Initial Meetings. The first meeting of each newly elected Board shall
be held immediately following the annual shareholders' meeting at which the
Board or any class thereof, is
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elected and at the same place as the annual meeting, and no notice of such first
meeting shall be necessary for the newly elected directors in order legally to
constitute the meeting.
4.3 Regular Meetings; Notice. Regular meetings of the Board may be held
at such times as the Board may from time to time determine. Notice of regular
meetings of the Board of Directors shall be required, but no special form of
notice or time of notice shall be necessary.
4.4 Special meetings; Notice. Special meetings of the Board may be called
by the Chairman of the Board or the President on reasonable notice given to each
director, either personally or by telephone, mail, telex, telecopy or any other
comparable form of facsimile communication. Special meetings shall be called by
the Secretary in like manner and on like notice on the written request of a
majority of the directors and if the officer fails or refuses, or is unable
within 24 hours to call a meeting when requested, then the directors making the
request may call the meeting on two days' written notice given to each director.
The notice of a special meeting of directors need not state its purpose or
purposes. But if the notice states a purpose or purposes and does not state a
further purpose to consider such other business as may properly come before the
meeting, the business to be conducted at the special meeting shall be limited to
the purpose or purposes stated in the notice.
4.5 Waiver of Notice. Directors present at any regular or special meeting
shall be deemed to have received, or to have waived, due notice thereof,
provided that a director who participates in a meeting by telephone (as
permitted by Section 4.9 hereof) shall not be deemed to have received or waived
due notice if, at the beginning of the meeting, he objects to the transaction of
any business because the meeting is not lawfully called.
4.6 Quorum. A majority of the Board shall be necessary to constitute a
quorum for the transaction of business, and except as otherwise provided by law,
the Articles or these By-Laws, the acts of a majority of the directors present
at a duly called meeting at which a quorum is present shall be the acts of the
Board. If a quorum is not present at any meeting of the Board of Directors, the
directors present may adjourn the meeting from time to time without notice other
than announcement at the meeting until a quorum is present.
4.7 Withdrawal. If a quorum was present when the meeting convened, the
directors present may continue to do business, taking action by vote of a
majority of a quorum as fixed in Section 4.6 hereof, until adjournment,
notwithstanding the withdrawal of enough directors to leave less than a quorum
as fixed in Section 4.6 hereof or the refusal of any director present to vote.
4.8 Action by Consent. Any action that may be taken at a meeting of the
Board, or any committee thereof, may be taken by a consent in writing signed by
all of the directors or by all members of the committee, as the case may be, and
filed with the records of proceedings of the Board or committee.
4.9 Meetings by Telephone or Similar Communications. Members of the Board
may participate at and be present at any meeting of the Board or any committee
thereof by means of conference telephone or similar communications equipment if
all persons participating in such meeting can hear and communicate with each
other.
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SECTION 5
Committees of The Board
5.1 General. The Board may designate one or more committees, each
committee to consist of two or more of the directors of the Corporation (and one
or more directors may be named as alternate members to replace any absent or
disqualified regular members), which, to the extent provided by resolution of
the Board or these By-Laws, shall have and may exercise the powers of the Board
in the management of the business and affairs of the Corporation, and may have
power to authorize the seal of the Corporation to be affixed to documents, but
no such committee shall have power or authority to amend the Articles, adopt an
agreement of merger, consolidation or share exchange, recommend to the
shareholders the sale, lease or exchange of all or substantially all of the
Corporation's assets, recommend to the shareholders a dissolution of the
Corporation or a revocation of dissolution, remove or indemnify directors, or
amend these By-Laws; and unless the resolution expressly so provides, no such
committee shall have the power of authority to declare a dividend or authorize
the issuance of stock. Such committee or committees shall have such name or
names as may be stated in these By-Laws, or as may be determined, from time to
time by the Board. Any vacancy occurring in any such committee shall be filled
by the Board, but the President may designate another director to serve on the
committee pending action by the Board. Each such committee shall hold office
during the term of the Board.
5.2 Compensation Committee. The Board shall establish and maintain a
Compensation Committee consisting of three or more directors, none of whom shall
be an employee of the Company or any of its subsidiaries, and each of whom shall
meet any further qualifications designated by the Board. The Compensation
Committee shall perform such services as may be designated by the Board.
5.3 Audit Committee. The Board shall establish an Audit Committee
consisting of at least three directors, a majority of whom are not officers or
employees of the Corporation or any of its subsidiaries. The Audit Committee
shall (i) serve as a focal point for communications between the Corporation's
directors, management, independent accountants and internal auditing personnel,
as their duties relate to financial accounting, reporting and controls, (ii)
assist the Board of Directors in fulfilling its fiduciary responsibilities as to
accounting policies and reporting practices of the Corporation and all
subsidiaries and the sufficiency of auditing practices with respect thereto, in
part, by reviewing the scope of audit coverage, including consideration of the
Corporation's accounting practices and procedures and system of internal
accounting controls and reporting to the Board with respect thereto, (iii)
operate as the Board's principal agent in ensuring the independence of the
Corporation's independent accountants, the integrity of management and the
adequacy of disclosure to shareholders, and (iv) perform such other services as
may be designated by the Board.
SECTION 6
Removal of Board Member
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The shareholders, by vote of a majority of the shares that would be
entitled to elect the successor to the removed director, may remove from office
any one or more of the directors, notwithstanding that his or their terms of
office may not have expired, and may at such meeting elect one or more
successors, as the case may be, for the unexpired term.
SECTION 7
Notices
7.1 Form of Delivery. Whenever under the provisions of law, the Articles
or these By-Laws notice is required to be given to any shareholder or director,
it shall not be construed to mean personal notice unless otherwise specifically
provided in the Articles or these By-Laws, but such notice may be given by mail,
addressed to such shareholder or director at his address as it appears on the
records of the Corporation, with postage thereon prepaid, or in such other
manner as may be specified in these By-Laws. Notices given by mail shall be
deemed to have been given at the time they are deposited in the United States
mail, and all other notices shall be deemed to have been given upon receipt.
7.2 Waiver. Whenever any notice is required to be given by law, the
Articles or these By-Laws, a waiver thereof in writing signed by the person or
persons entitled to said notice, whether before or after the time stated
therein, shall be deemed equivalent thereto. In addition, notice shall be
deemed to have been given to, or waived by, any shareholder or director who
attends a meeting of shareholders or directors in person, or is represented at
such meeting by proxy, without protesting at the commencement of the meeting the
transaction of any business because the meeting is not lawfully called or
convened.
SECTION 8
Officers
8.1 Designations. The officers of the Corporation shall be elected by the
directors and shall be the Chairman of the Board, President, Secretary and
Treasurer. The Board of Directors may appoint a Chief Executive Officer, one or
more Vice Presidents and such other officers as it shall deem necessary, who
shall hold their offices for such terms and shall exercise such powers and
perform such duties as shall be determined from time to time by the Board. More
than one office maybe may be held by one person, provided that no person holding
more than one office may sign, in more than one capacity, any certificate or
other instrument required by law to be signed by two officers.
8.2 Term of Office. The officers of the Corporation shall hold office at
the pleasure of the Board of Directors. Except as otherwise provided in the
resolution of the Board of Directors electing any officer, each officer shall
hold office until the first meeting of the Board of Directors after the annual
meeting of shareholders next succeeding his or her election and until his or her
successor is elected and qualified or until his or her earlier resignation or
removal. Any officer may resign at any time upon written notice to the Board,
Chairman of the Board, President or Secretary of
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the Corporation. Such resignation shall take effect at the time specified
therein and acceptance of such resignation shall not be necessary to make it
effective. The Board may remove any officer with or without cause at any time.
Any such removal shall be without prejudice to the contractual rights of such
officers, if any, with the Corporation, but the election of an officer shall not
in and of itself create contractual rights. Any vacancy occurring in any office
of the Corporation by death, resignation, removal or otherwise may be filled for
the unexpired portion of the term by the Board at any regular or special
meeting.
8.3 The Chairman of the Board. The Chairman of the Board shall preside at
meetings of the Board of Directors and the shareholders and perform such other
duties as may be designated by the Board of Directors or these By-Laws. He shall
be an ex-officio member of all committees of the Board of Directors, except that
he shall be a full member entitled to all the rights and privileges appertaining
thereto with respect to committees on which he is named a full member.
8.4 The President. The President shall, subject to the powers of the
Chairman of the Board, shall have general and active management of the business
of the Corporation, shall, unless otherwise provided by the Board, be the chief
executive and chief operating officer of the Corporation, shall supervise the
daily operations of the business of the Corporation and shall ensure that all
orders, policies and resolutions of the Board are carried out.
8.5 The Vice Presidents. The Vice-Presidents (if any) shall perform such
duties as the President or the Board of Directors shall prescribe.
8.6 The Secretary. The Secretary shall attend all meetings of the Board
of Directors and all meetings of the shareholders and record all votes and the
minutes of all proceedings in a book to be kept for that purpose. He shall
give, or cause to be given, notice of all meetings of the shareholders and
regular and special meetings of the Board, and shall perform such other duties
as may be prescribed by the Board or President. He shall keep in safe custody
the seal of the Corporation, if any, and affix the same to any instrument
requiring it.
8.7 The Treasurer. The Treasurer shall have the custody of the corporate
funds and shall keep or cause to be kept full and accurate accounts of receipts
and disbursements in books belonging to the Corporation and shall deposit all
monies and other valuable effects in the name and to the credit of the
Corporation in such depositories as may be designated by the Board of Directors.
He shall keep a proper accounting of all receipts and disbursements and shall
disburse the funds of the Corporation only for proper corporate purposes or as
may be ordered by the Board and shall render to the President and the Board at
the regular meetings of the Board, or whenever they may require it, an account
of all his transactions as Treasurer and of the financial condition and results
of operations of the Corporation.
SECTION 9
Stock
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9.1 Certificates. Every holder of stock in the Corporation shall be
entitled to have a certificate signed by the President or a Vice President and
the Secretary or an Assistant Secretary evidencing the number and class (and
series, if any) of shares owned by him, containing such information as required
by law and bearing the seal of the Corporation. If any stock certificate is
manually signed by a transfer agent or registrar other than the Corporation
itself or an employee of the Corporation, the signature of any such officer may
be a facsimile. In case any officer, transfer agent or registrar who has signed
or whose facsimile signature has been place upon a certificate shall have ceased
to be an officer, transfer agent or registrar of the Corporation before such
certificate is issued, it may be issued by the Corporation with the same effect
as if such person or entity were an officer, transfer agent or registrar of the
Corporation on the date of issue.
9.2 Missing Certificates. The President or any Vice President may direct a
new certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Corporation alleged to have been lost,
stolen or destroyed, upon the Corporation's receipt of an affidavit of that fact
from the person claiming the certificate of stock to be lost, stolen or
destroyed. As a condition precedent to the issuance of a new certificate or
certificates, the officers of the Corporation shall, unless dispensed with by
the President, require the owner of such lost, stolen or destroyed certificate
or certificates, or his legal representative, to (i) give the Corporation a bond
or (ii) enter into a written indemnity agreement, in each case in an amount
appropriate to indemnify the Corporation against any claim that may be made
against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
9.3 Transfers. Upon compliance with the transfer restrictions contained in
the Articles of Incorporation and surrender to the Corporation or the transfer
agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the Corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its books.
SECTION 10
Determination of Shareholders
10.1 Record Date. For the purpose of determining shareholders entitled to
notice of and to vote at a meeting, or to receive a dividend, or to receive or
exercise subscription or other rights, or to participate in a reclassification
of stock, or in order to make a determination of shareholders for any other
proper purpose, the Board of Directors may fix in advance a record date for
determination of shareholders for such purpose, such date to be not more than 60
days and, if fixed for the purpose of determining shareholders entitled to
notice of and to vote at a meeting, not less than 10 days, prior to the date on
which the action requiring the determination of shareholders is to be taken.
10.2 Registered Shareholders. Except as otherwise provided by law, the
Corporation and its directors, officers and agents may recognize and treat a
person registered on its records as the owner of shares, as the owner in fact
thereof for all purposes, and as the person exclusively entitled to have and to
exercise all rights and privileges incident to the ownership of such shares, and
the
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Corporation's rights under this section shall not be affected by any actual or
constructive notice which the Corporation, or any of its directors, officers or
agents, may have to the contrary.
SECTION 11
Indemnification
11.1 Definitions. As used in this section the following terms shall have
the meanings set forth below:
(a) "Board" - the Board of Directors of the Corporation.
(b) "Claim" - any threatened, pending or completed claim, action, suit, or
proceeding, whether civil, criminal, administrative or investigative and whether
made judicially or extra-judicially, or any separate issue or matter therein, as
the context requires.
(c) "Determining Body" - (i) those members of the Board who are not named
as parties to the Claim for which indemnification is being sought ("Impartial
Directors") if there are at least three Impartial Directors, (ii) a committee of
at least three Impartial Directors appointed by the Board (regardless whether
the members of the Board of Directors voting on such appointment are Impartial
Directors) or (iii) if there are fewer than three Impartial Directors or if the
Board of Directors or the committee appointed pursuant to clause (ii) of this
paragraph so directs (regardless whether the members thereof are Impartial
Directors), independent legal counsel, which may be the regular outside counsel
of the Corporation.
(d) "Disbursing Officer" - the President of the Corporation or, if the
President is a party to the Claim for which indemnification is being sought, any
officer not a party to such Claim who is designated by the President to be the
Disbursing Officer with respect to indemnification requests related to the
Claim, which designations shall be made promptly after receipt of the initial
request for indemnification with respect to such Claim.
(e) "Expenses" - any expenses or costs (including, without limitation,
attorney's fees, judgments, punitive or exemplary damages, fines and amounts
paid in settlement).
(f) "Indemnitee" - each person who is or was a director or officer of the
Corporation.
11.2 Indemnity.
(a) To the extent such Expenses exceed the amounts reimbursed or paid
pursuant to policies of liability insurance maintained by the Corporation, the
Corporation shall indemnify each Indemnitee against any Expenses actually and
reasonably incurred by him (as they are incurred) in connection with any Claim
either against him or as to which he is involved solely as a witness or person
required to give evidence, by reason of his position (i) as director or officer
of the Corporation, (ii) as a director or officer of any subsidiary of the
Corporation or as a fiduciary with respect to any employee benefit plan of the
Corporation, or (iii) as a director, officer, partner,
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employee or agent of another Corporation, partnership, joint venture, trust or
other for-profit or not-for-profit entity or enterprise, if such position is or
was held at the request of the Corporation, whether relating to service in such
position before or after the effective date of this Section, if he (i) is
successful in his defense of the Claim on the merits or otherwise or (ii) has
been found by the Determining Body (acting in good faith) to have met the
Standard of Conduct (defined below); provided that (A) the amount otherwise
payable by the Corporation may be reduced by the Determining Body to such amount
as it deems proper if it determines that the Claim involved the receipt of a
personal benefit by Indemnitee, and (B) no indemnification shall be made in
respect of any Claim as to which Indemnitee shall have been adjudged by a court
of competent jurisdiction, after exhaustion of all appeals therefrom, to be
liable for willful or intentional misconduct in the performance of his duty to
the Corporation or to have obtained an improper personal benefit, unless, and
only to the extent that, a court shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
Indemnitee is fairly and reasonably entitled to indemnity for such Expenses as
the court deems proper.
(b) The Standard of Conduct is met when the conduct by an Indemnitee with
respect to which a Claim is asserted was conduct that was in good faith and that
he reasonably believed to be in, or not opposed to, the best interest of the
Corporation, and, in the case of a criminal action or proceeding, that he had no
reasonable cause to believe was unlawful. The termination of any Claim by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that Indemnitee did
not meet the Standard of Conduct. (c) Promptly upon becoming aware of the
existence of any Claim as to which he may be indemnified hereunder, Indemnitee
shall notify the President of the Corporation of the Claim and whether he
intends to seek indemnification hereunder. If such notice indicates that
Indemnitee does so intend, the President shall promptly advise the Board thereof
and notify the Board that the establishment of the Determining Body with respect
to the Claim will be a matter presented at the next regularly scheduled meeting
of the Board. After the Determining Body has been established the President
shall inform the Indemnitee thereof and Indemnitee shall immediately provide the
Determining Body with all facts relevant to the Claim known to him. Within 60
days of the receipt of such information, together with such additional
information as the Determining Body may request of Indemnitee, the Determining
Body shall determine, and shall advise Indemnitee of its determination, whether
Indemnitee has met the Standard of Conduct.
(d) During such 60-day period, Indemnitee shall promptly inform the
Determining Body upon his becoming aware of any relevant facts not theretofore
provided by him to the Determining Body, unless the Determining Body has
obtained such facts by other means.
(e) In the case of any Claim not involving a proposed, threatened or
pending criminal proceeding,
(i) if Indemnitee has, in the good faith judgment of the Determining
Body, met the Standard of Conduct, the Corporation may, in its sole discretion
after notice to Indemnitee, assume all responsibility for the defense of the
Claim, and, in any event, the Corporation and the Indemnitee each shall keep the
other informed as to the progress of the defense, including prompt disclosure of
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any proposals for settlement; provided that if the Corporation is a party to the
Claim and Indemnitee reasonably determines that there is a conflict between the
positions of the Corporation and Indemnitee with respect to the Claim, then
Indemnitee shall be entitled to conduct his defense, with counsel of his choice;
and provided further that Indemnitee shall in any event be entitled at his
expense to employ counsel chosen by him to participate in the defense of the
Claim; and
(ii) the Corporation shall fairly consider any proposals by Indemnitee
for settlement of the Claim. If the Corporation (A) proposes a settlement
acceptable to the person asserting the Claim, or (B) believes a settlement
proposed by the person asserting the Claim should be accepted, it shall inform
Indemnitee of the terms thereof and shall fix a reasonable date by which
Indemnitee shall respond. If Indemnitee agrees to such terms, he shall execute
such documents as shall be necessary to effect the settlement. If he does not
agree he may proceed with the defense of the Claim in any manner he chooses, but
if he is not successful on the merits or otherwise, the Corporation's obligation
to indemnify him for any Expenses incurred following his disagreement shall be
limited to the lesser of (A) the total Expenses incurred by him following his
decision not to agree to such proposed settlement or (B) the amount the
Corporation would have paid pursuant to the terms of the proposed settlement.
If, however, the proposed settlement would impose upon indemnitee any
requirement to act or refrain from acting that would materially interfere with
the conduct of his affairs, Indemnitee may refuse such settlement and proceed
with the defense of the Claim, if he so desires, at the Corporation's expense
without regard to the limitations imposed by the preceding sentence. In no
event, however, shall the Corporation be obligated to indemnify Indemnitee for
any amount paid in a settlement that the Corporation has not approved.
(f) In the case of a Claim involving a proposed, threatened or pending
criminal proceeding, Indemnitee shall be entitled to conduct the defense of the
Claim, and to make all decisions with respect thereto, with counsel of his
choice, provide, however, that the Corporation shall not be obligated to
indemnify Indemnitee for an amount paid in settlement that the Corporation has
not approved.
(g) After notifying the Corporation of the existence of a Claim, Indemnitee
may from time to time request the Corporation to pay the Expenses (other than
judgments, fines, penalties or amounts paid in settlement) that he incurs in
pursuing a defense of the Claim prior to the time that the Determining Body
determines whether the Standard of Conduct has been met. If the Disbursing
Officer believes the amount requested to be reasonable, he shall pay to
Indemnitee the amount requested (regardless of Indemnitee's apparent ability to
repay such amount) upon receipt of an undertaking by or on behalf of Indemnitee
to repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the Corporation under the circumstances. If the
Disbursing Officer does not believe such amount to be reasonable, the
Corporation shall pay the amount deemed by him to be reasonable and Indemnitee
may apply directly to the Determining Body for the remainder of the amount
requested.
(h) After the Determining Body has determined that the Standard of Conduct
was met, for so long as and to the extent that the Corporation is required to
indemnify Indemnitee under this Agreement, the provisions of Paragraph (g) shall
continue to apply with respect to Expenses incurred after such time except that
(i) no undertaking shall be required of Indemnitee and (ii) the Disbursing
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Officer shall pay to Indemnitee such amount of any fines, penalties or judgments
against him which have become final as the Corporation is obligated to indemnify
him.
(i) Any determination by the Corporation with respect to settlements of a
Claim shall be made by the Determining Body.
(j) The Corporation and Indemnitee shall keep confidential, to the extent
permitted by law and their fiduciary obligations, all facts and determinations
provided or made pursuant to or arising out of the operation of this Section,
and the Corporation and Indemnitee shall instruct its or his agents and
employees to do likewise.
11.3 Enforcement.
(a) The rights provided by this Section shall be enforceable by Indemnitee
in any court of competent jurisdiction.
(b) If Indemnitee seeks a judicial adjudication of his rights under this
Section, Indemnitee shall be entitled to recover from the Corporation, and shall
be indemnified by the Corporation against any and all Expenses actually and
reasonably incurred by him in connection with such proceeding but only if he
prevails therein. If it shall be determined that Indemnitee is entitled to
receive part but not all of the relief sought, then the Indemnitee shall be
entitled to be reimbursed for all Expenses incurred by him in connection with
such judicial adjudication if the amount to which he is determined to be
entitled exceeds 50% of the amount of his claim. Otherwise, the Expenses
incurred by Indemnitee in connection with such judicial adjudication shall be
appropriately prorated.
(c) In any judicial proceeding described in this subsection, the
Corporation shall bear the burden of proving that Indemnitee is not entitled to
any Expenses sought with respect to any Claim.
11.4 Saving Clause.
If any provision of this Section is determined by a court having
jurisdiction over the matter to require the Corporation to do or refrain from
doing any act that is in violation of applicable law, the court shall be
empowered to modify or reform such provision so that, as modified or reformed,
such provision provides the maximum indemnification permitted by law, and such
provision, as so modified or reformed, and the balance of this Section, shall be
applied in accordance with their terms. Without limiting the generality of the
foregoing, if any portion of this Section shall be invalidated on any ground,
the Corporation shall nevertheless indemnify an Indemnitee to the full extent
permitted by any applicable portion of this Section that shall not have been
invalidated and to the full extent permitted by law with respect to that portion
that has been invalidated.
11.5 Non-Exclusivity.
(a) The indemnification and advancement of Expenses provided by or granted
pursuant to this Section shall not be deemed exclusive of any other rights to
which Indemnitee is or may become
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entitled under any statute, article of incorporation, by-law, authorization of
shareholders or directors, agreement, or otherwise.
(b) It is the intent of the Corporation by this Section to indemnify and
hold harmless Indemnitee to the fullest extent permitted by law, so that if
applicable law would permit the Corporation to provide broader indemnification
rights than are currently permitted, the Corporation shall indemnify and hold
harmless Indemnitee to the fullest extent permitted by applicable law
notwithstanding that the other terms of this Section would provide for lesser
indemnification.
11.6 Successors and Assigns. This Section shall be binding upon the
Corporation, its successors and assigns, and shall inure to the benefit of the
Indemnitee's heirs, personal representatives, and assigns and to the benefit of
the Corporation, its successors and assigns.
11.7 Indemnification of Other Persons. The Corporation may indemnify any
person not covered by Sections 11.1 through 11.6 to the extent provided in a
resolution of the Board or a separate section of these By-Laws.
SECTION 12
Amendments
12.1 Adoption of By-Laws; Amendments Thereof. By-Laws of the Corporation
may be adopted only by a majority vote of the Board of Directors. By-Laws may be
amended or repealed only by (i) a two-thirds vote of the Board of Directors, or
(ii) the affirmative vote of the holders of at least two-thirds of the total
voting power, voting together as a single class, that is present or represented
at any regular or special meeting of shareholders, the notice of which expressly
states that the proposed amendment or repeal is to be considered at the meeting.
12.2 New By-Laws; Amendments. Any purported amendment to these By-Laws
which would add hereto a matter not expressly covered herein prior to such
purported amendment shall be deemed to constitute the adoption of a By-law
provision and not an amendment to the By-Laws.
SECTION 13
Preferred Shareholders
Notwithstanding anything in these By-Laws to the contrary, whenever the
holders of any one or more classes or series of stock having a preference over
the Common Stock as to dividends or upon liquidation shall have rights specified
in the Articles, the provisions of the Articles (as they may be duly amended
from time to time fixing the rights and preferences of such preferred stock)
shall govern to the extent inconsistent with these By-Laws.
SECTION 14
Miscellaneous
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14.1 Dividends. Except as otherwise provided by law or the Articles,
dividends upon the stock of the Corporation may be declared by the Board of
Directors at any regular or special meeting. Dividends may be paid in cash,
property, or in shares of stock, subject to the limitations specified in the
Articles.
14.2 Voting of Shares Owned by Corporation. Unless otherwise directed by
the Board, any shares of capital stock issued by a wholly-owned subsidiary of
the Corporation may be voted by the President of the Corporation at any
shareholders' meeting of the subsidiary (or in connection with any written
consent in lieu thereof).
14.3 Checks. 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. Signatures of the
authorized signatories may be by facsimile.
14.4 Fiscal Year. The Board of Directors may adopt for and on behalf of
the Corporation a fiscal or a calendar year.
14.5 Seal. The Board of Directors may adopt a corporate seal, which shall
have inscribed thereon the name of the Corporation. The seal may be used by
causing it or a facsimile thereof to be impressed or affixed or reproduced or
otherwise. Failure to affix the seal shall not, however, affect the validity of
any instrument.
14.6 Gender. All pronouns and variations thereof used in these By-Laws
shall be deemed to refer to the masculine, feminine or neuter gender, singular
or plural, as the identity of the person, persons, entity or entities referred
to may require.
14.7 Family Employment Policy
(a.) Purpose
This policy defines the procedures, process, and criteria that govern
how members of the "Family" enter and exit from the company. "Family"
is defined as all lineal descendants of William T. Henning and their
spouses. This Employment Policy is intended to remove any ambiguity
that currently exists due to lack of a comprehensive policy so that
interested Family members can make the necessary choice concerning
education and professional skills and shape their career paths
accordingly. However, this Employment Policy shall not be applicable
now or in the future to any Family members who are employed by a
Company on a full-time basis on February 1, 1999.
(b.) Philosophy
US Unwired Inc., Cameron Communications Corporation, and related
companies (the "Company" or "Companies") and the Family owners of the
Companies are committed to members of the Family and descendants
being responsible, productive, and well-educated citizens who
practice a strong work ethic and make constructive contributions to
the local community and the world at large. Each member is encouraged
to develop
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and use self-supporting, marketable skills that contribute to the
enhancement of his/her self-esteem and independence. In order for a
Family member to be employed in a Company, there must be a legitimate job
and the skill to match.
Family and management subscribe to the philosophy that the opportunity to
be employed in the Companies must be earned; it is not a birthright. It
is the policy of the Companies to search out and employ, at all levels,
individuals who have the ability to manage relationships, who show
evidence of ability and willingness to take initiative, who exhibit self-
confidence and high self-esteem, and who are both independent and
responsible in managing their lives and their jobs. The Companies will
succeed best when professional and technical competence is the criterion
for entrance to employment. Further, high-level competence must be
supported by a sustained performance record. All Family members may not
be happy working in the lines of business a Company pursues and each
should seek employment that uses their skills to the maximum of their
ability. This can be within a Company or elsewhere. Family members who
remain in the business should do so because their talents, interests and
abilities fit with the needs of a Company. Family who cannot meet these
standards will be happiest when employed elsewhere.
(c.) General Conditions:
1. With respect to Family employment, there are generally two levels
recognized:
1) Part-time and summer employment; 2) Full time employment.
2. Part-time or summer jobs will be generally available to all Family
members attending school. Positions will be commensurate with skills
and Company needs.
3. For full time employment, employment outside of the Companies is
required for all Family prior to working for a Company. Such
employment is the desired method of developing the qualifications for
employment with a Company. A minimum of three to five years outside
employment is required along with positive job reviews.
4. Immediately prior to working for a Company, a Family member must have
been employed by the same employer (or its successor in interest) for
a minimum of three consecutive years.
5. General requirements for any job will be the same for Family as with
other applicants (college degree, work experience, favorable work
references, etc.).
6. All Family applying for a job will be offered a position with the
Company if they meet the qualifications for the particular position
in question. The Family member will be selected over other
candidates for the position only if they are equal to or superior in
their qualifications.
7. All Family are expected to meet the same level of performance
required of non-
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Family employees. They will be subject to the same performance
reviews and rules as other employees or promotion or termination.
Promotion will be based strictly on merit.
8. Before any Family is hired for any position, other than part-time or
summer, the executive committee of the Company (or the Board of
Directors if there is no executive committee) hiring the Family
member must be consulted and give their approval.
9. Compensation for Family will be the same as for a non-Family member
of equal skill and performance holding the same position.
10. Whenever possible, Family will be evaluated and supervised by non-
Family members.
(d.) Applying for a Position
Family who wish to apply for a position must make their interest known in
writing to the President or Human Relations Director of the Company. When
a position becomes available, only Family who have expressed an interest
in employment in writing will be informed of the opportunity. They may
then complete the normal application forms and submit the application for
appropriate processing and consideration.
(e.) Succession
The size of the company necessitates that many key management positions
be filled by non-Family executives. To provide incentive for these
employees to remain with the firm and to excel in their positions,
opportunity for advancement must be available to them. No key management
positions are reserved for family members. All positions in the firm,
including President/CEO, will be filled by the most qualified person
available without regard to their Family status.
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