EXHIBIT 3.3 - BY-LAWS OF WWAP, INC.
BY-LAWS
OF
WWAP, INC.
ARTICLE I
OFFICES
Section 1.1 REGISTERED OFFICE. The registered office of the Corporation
shall be in the City of Wilmington, County of New Castle, State of Delaware and
the name and address of its registered agent is Corporation Trust Company, 1209
Orange Street, Wilmington, Delaware.
Section 1.2 OTHER OFFICES. The Corporation may also have offices at
such other places both within and without the State of Delaware as the Board of
Directors of the Corporation (the "Board of Directors") may from time to time
determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 2.1 PLACE OF MEETINGS. Meetings of the stockholders for the
election of directors or for any other purpose shall be held at such place,
either within or without the State of Delaware, as shall be designated from time
to time by the Board of Directors and stated in the notice of the meeting or in
a duly executed waiver of notice thereof.
Section 2.2 ANNUAL MEETINGS. The annual meeting of the stockholders of
the Corporation for the election of Directors and for the transaction of such
other business as properly may come before such meeting shall be held at such
time and date as may be designated from time to time by the Board of Directors
and set forth in the notice or waiver of notice of the meeting.
Section 2.3 SPECIAL MEETINGS. Unless otherwise prescribed by law,
special meetings of the stockholders, may be called at any time only by the
Chairman of the Board, if one be elected, the Chief Executive Officer, the
President or by the Board of Directors pursuant to a resolution approved by a
majority of the entire Board of Directors. A special meeting may not be called
by any other person or persons. Special meetings of the stockholders may be held
at such time and date as shall be stated in the notice of meeting. The Board of
Directors may postpone, reschedule or cancel any previously scheduled special
meeting.
Section 2.4 ANNUAL AND SPECIAL MEETING PROCEDURES.
(a) Nominations of persons for election to the Board of
Directors and the proposal of business to be considered by the
stockholders may be made at an annual meeting of stockholders (i)
pursuant to the Corporation's notice with respect to such meeting, (ii)
by or at the direction of the Board of Directors or (iii) by any
stockholder of record of the Corporation who was a stockholder of
record at the time of the giving of the notice provided for in the
following paragraph, who is entitled to vote at the meeting and who has
complied with the notice procedures set forth in this section.
(b) For nominations or other business to be properly brought
before an annual meeting by a stockholder pursuant to Section 2.4
(a)(iii), the stockholder must have given timely notice thereof in
writing to the Secretary of the Corporation and such business must be a
proper matter for stockholder action under the General Corporation Law
of the State of Delaware. To be timely, a stockholder's notice shall be
delivered to the Secretary of the Corporation at the principal
executive offices of the Corporation not fewer than ninety (90) days
nor more than one hundred twenty (120) days prior to the first
anniversary of the preceding year's annual meeting and in any event at
least forty-five (45) days prior to the first anniversary of the date
on which the Corporation first mailed its proxy materials for the prior
year's annual meeting of stockholders; PROVIDED, THAT, if no proxy
materials were mailed by the Corporation in connection with the
preceding year's annual meeting, or if the date of the annual meeting
is advanced by more than thirty (30) days or delayed by more than
seventy (70) days from such anniversary date, notice by the stockholder
to be timely must be so delivered not earlier than one hundred twenty
(120) days prior to such annual meeting and not later than the close of
business on the later of the ninetieth day prior to such annual meeting
or the tenth day following the day on which public announcement of the
date of such meeting is first made. In no event shall the adjournment
of an annual meeting commence a new time period for the giving of a
stockholder's notice as described above. Such stockholder's notice
shall set forth (i) as to each person whom the stockholder proposes to
nominate for election or reelection as a Director all information
relating to such person that is required to be disclosed in
solicitations of proxies for election of Directors, or is otherwise
required, in each case pursuant to Regulation 14A under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and Rule 14a-11
thereunder, or any successor provisions, including such person's
written consent to being named in the proxy statement as a nominee and
to serving as a Director if elected; (ii) as to any other business that
the stockholder proposes to bring before the meeting, a brief
description of the business desired to be brought before the meeting,
the reasons for conducting such business at the meeting and any
material interest in such business of such stockholder and of any
beneficial owner on whose behalf the
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proposal is made; and (iii) as to the stockholder giving the notice and
any beneficial owner on whose behalf the nomination or proposal is made
(A) the name and address of such stockholder, as they appear on the
Corporation's books, and of such beneficial owner and (B) the class and
number of shares of the Corporation which are owned beneficially and of
record by such stockholder and such beneficial owner.
(c) Notwithstanding anything in the second sentence of Section
2.4(b) to the contrary, in the event that the number of directors to be
elected to the Board of Directors is increased and there is no public
announcement naming all of the nominees for director or specifying the
size of the increased Board made by the Corporation at least one
hundred (100) days prior to the first anniversary of the preceding
year's annual meeting, a stockholder's notice required by this
paragraph shall also be considered timely but only with respect to
nominees for any new positions created by such increase, if it shall be
delivered to the Secretary of the Corporation at the principal
executive offices of the Corporation not later than the close of
business on the tenth day following the day on which such public
announcement is first made by the Corporation.
(d) Only such business as shall have been brought before the
special meeting of stockholders pursuant to the Corporation's notice of
meeting pursuant to Section 2.10 of these By-Laws shall be conducted at
such meeting. Nominations of persons for election to the Board of
Directors may be made at a special meeting of stockholders at which
directors are to be elected pursuant to the Corporation's notice of
meeting (i) by or at the direction of the Board of Directors or (ii) by
any stockholder of record of the Corporation who is a stockholder of
record at the time of giving of notice provided for in this paragraph,
who shall be entitled to vote at the meeting and who complies with the
applicable notice procedures set forth in this Section 2.4. Nominations
by stockholders of persons for election to the Board of Directors may
be made at such a special meeting of stockholders if the stockholder's
notice required by the Section 2.4(b) shall be delivered to the
Secretary at the principal executive offices of the Corporation not
earlier than one hundred twenty (120) days prior to such special
meeting and not later than the close of business on the later of the
ninetieth day prior to such special meeting or the tenth day following
the day on which public announcement is first made of the date of the
special meeting and of the nominees proposed by the Board of Directors
to be elected at such meeting. In no event shall the adjournment of a
special meeting commence a new time period for the giving of a
stockholder's notice as described above.
(e) Only persons nominated in accordance with the procedures
set forth in this Section 2.4 shall be eligible to serve as directors
and only such business shall be conducted at an annual meeting of
stockholders as shall have been brought
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before the meeting in accordance with the procedures set forth in this
section. The chair of the meeting shall have the power and the duty to
determine whether a nomination or any business proposed to be brought
before the meeting has been made in accordance with the procedures set
forth in these By-Laws and, if any proposed nomination or business is
not in compliance with these By-Laws, to declare that such defective
proposed business or nomination shall not be presented for stockholder
action at the meeting and shall be disregarded.
(f) For purposes of this section, "public announcement" shall
mean disclosure in a press release reported by the Dow Jones News
Service, Associated Press or a comparable national news service or in a
document publicly filed by the Corporation with the Securities and
Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange
Act.
(g) Notwithstanding the foregoing provisions of this Section
2.4, a stockholder shall also comply with all applicable requirements
of the Exchange Act and the rules and regulations thereunder with
respect to matters set forth in this Section 2.4. Nothing in this
Section 2.4 shall be deemed to affect any rights of stockholders to
request inclusion of proposals in the Corporation's proxy statement
pursuant to Rule 14a-8 under the Exchange Act.
Section 2.5 TIME PERIODS. In applying any provision of these By-Laws
which requires that an act be done or not be done a specified number of days
prior to an event or that an act be done during a period of a specified number
of days prior to an event, calendar days shall be used, the day of the doing of
the act shall be excluded, and the day of the event shall be included.
Section 2.6 VOTING. Each stockholder entitled to vote in accordance
with the terms of the Certificate of Incorporation, as the same may be amended
or restated from time to time (the "Certificate of Incorporation") and in
accordance with the provisions of these By-Laws shall be entitled to such number
of votes as provided in the Certificate of Incorporation, in person or by proxy,
for each share of stock entitled to vote held by such stockholder, but no proxy
shall be voted after three years from its date unless such proxy provides for a
longer period. Upon the demand of any stockholder, the vote for directors and
the vote upon any question before the meeting shall be by ballot. At all
meetings of stockholders, all matters, except for the election of directors and
except as otherwise provided by law, the Certificate of Incorporation or these
By-Laws, shall be determined by the affirmative vote of the majority of shares
present in person or represented by proxy at the meeting at which a quorum is
present and entitled to vote on the subject matter. Directors shall be elected
by a plurality of the votes cast at the annual meeting of stockholders.
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Section 2.7 NO CONSENT OF STOCKHOLDERS IN LIEU OF MEETING. Any action
required or permitted to be taken at any annual or special meeting of
stockholders may be taken only upon the vote of the stockholders at an annual or
special meeting duly noticed and called, as provided in these By-Laws, and may
not be taken by a written consent of the stockholders pursuant to the Delaware
General Corporation Law.
Section 2.8 VOTING LISTS. A complete list of the stockholders entitled
to vote at the ensuing election of directors, arranged in alphabetical order
showing the address of each stockholder and the number of shares held by each
stockholder, shall be open to the examination of any stockholder, for any
purpose germane to the meeting, during ordinary business hours, for a period of
at least ten days prior to the meeting, either at a place within the city where
the meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 2.9 QUORUM. Except as otherwise required by law, the
Certificate of Incorporation or these By-Laws, the presence, in person or by
proxy, of the holders of record of a majority of the votes entitled to be cast
in respect of all outstanding shares of stock of the Corporation shall
constitute a quorum at all meetings of the stockholders. In case a quorum shall
not be present at any meeting, the Chairman of the Board, if one be elected, the
Chief Executive Officer, the President or other person entitled to chair the
meeting or a majority in voting interest of the stockholders entitled to vote
thereat, present in person or by proxy, shall have power to adjourn the meeting
from time to time, without notice other than announcement at the meeting, until
a quorum shall be present. At any such adjourned meeting at which a quorum shall
be present, any business may be transacted which might have been transacted at
the meeting as originally noticed.
Section 2.10 NOTICE OF MEETINGS; WAIVER.
(a) Written notice, stating the place, date and time of the
meeting, and the general nature of the business to be considered, shall
be given to each stockholder entitled to vote thereat at his address as
it appears on the records of the Corporation, not less than ten (10)
nor more than sixty (60) days before the date of the meeting. No
business other than that stated in the notice shall be transacted at
any special meeting without the unanimous consent of all the
stockholders entitled to vote thereat.
(b) A stockholder may waive notice required by law, the
Certificate of Incorporation or these By-Laws before or after the date
and time stated in such notice. Except as provided in the next
sentence, the waiver must be in writing, be signed by the stockholder
entitled to the notice and be delivered to the Corporation for
inclusion in the minutes or filing with the corporate records. A
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stockholder's attendance at a meeting: (i) waives objection to lack of
notice or defective notice of meeting, unless the stockholder at the
beginning of the meeting (or promptly upon his or her arrival) objects
to holding the meeting or transacting business at the meeting; and (ii)
waives objection to consideration of a particular matter at the meeting
that is not within the purpose or purposes described in the meeting
notice, unless the stockholder objects to considering the matter when
it is presented.
ARTICLE III
DIRECTORS
Section 3.1 GENERAL POWERS. Except as may otherwise be provided by law,
the Certificate of Incorporation or these By-Laws, the property, affairs and
business of the Corporation shall be managed by or under the direction of the
Board of Directors and the Board of Directors may exercise all the powers of the
Corporation.
Section 3.2 NUMBER OF DIRECTORS. Subject to the rights, if any, of
holders of preferred stock of the Corporation to elect directors of the
Corporation, the Board of Directors shall be determined from time to time by
resolution duly adopted by the Board of Directors.
Section 3.3 CLASSIFIED BOARD OF DIRECTORS; ELECTION OF DIRECTORS. The
Directors of the Corporation, subject to the rights, if any, of the holders of
preferred stock, shall be classified with respect to the time for which they
severally hold office, into three (3) classes, as nearly equal in number as
possible, one class ("Class I") whose initial term expires at the 2005 annual
meeting of stockholders, another class ("Class II") whose initial term expires
at the 2006 annual meeting of stockholders, and another class ("Class III")
whose initial term expires at the 2007 annual meeting of stockholders, with each
class to hold office until its successors are elected and qualified. Except as
otherwise provided in Sections 3.4 and 3.9 of these By-Laws, at each annual
meeting of stockholders of the Corporation, and subject to the rights, if any,
of the holders of preferred stock, the successors of the class of directors
whose term expires at that meeting shall be elected to hold office for a term
expiring at the annual meeting of stockholders held in the third year following
the year of their election.
Section 3.4 RESIGNATIONS. Any director may resign at any time. Such
resignation shall be made in writing, and shall take effect at the time
specified therein, and if no time be specified, at the time of its receipt by
the Chairman of the Board of Directors, if one be elected, the Chief Executive
Officer, the President or the Secretary. The acceptance of a resignation shall
not be necessary to make it effective, unless so specified therein.
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Section 3.5 VACANCIES. Subject to the rights of the holders, if any, of
preferred stock of the Corporation to elect additional directors under specified
circumstances and the Certificate of Incorporation, if the office of any
director becomes vacant for any reason, including but not limited to newly
created directorships resulting from any increase in the number of directors, or
a vacancy resulting from the removal of a director for cause, the remaining
directors in office, though less than a quorum, by a majority vote may appoint
any qualified person to fill such vacancy. Any director elected to fill a newly
created directorship shall be of the class specified by the Board of Directors
at the time the newly created directorships were created. A director elected to
fill a vacancy or a newly created directorship shall hold office until his or
her successor has been elected and qualified or until his or her earlier death,
resignation or removal.
Section 3.6 MEETINGS. Regular meetings of the directors may be held
without notice at such places and times as shall be determined from time to time
by resolution of the Board of Directors. Special meetings of the Board of
Directors may be called by the Chairman of the Board, if one be elected, the
Chief Executive Officer, the President or by the Secretary on the written
request of any two directors on at least two days' notice to each director and
shall be held at such place or places as may be determined by the directors, or
as shall be stated in the call of the meeting. Notice of a meeting need not be
given to any director who submits a signed waiver of notice before or after the
meeting, nor to any director who attends the meeting without protesting the lack
of notice either prior to the meeting or at its commencement.
Section 3.7 QUORUM. A majority of the entire Board of Directors shall
constitute a quorum for the transaction of business, and the acts of a majority
of the directors present at a meeting at which a quorum is present shall be the
acts of the Board of Directors, unless otherwise provided by law, the
Certificate of Incorporation or these By-Laws. If at any meeting of the Board of
Directors there shall be less than a quorum present, a majority of those present
may adjourn the meeting from time to time until a quorum is obtained, and no
further notice thereof need be given other than by announcement at the meeting
which shall be so adjourned.
Section 3.8 COMPENSATION. Directors and members of any committee
created by the Board of Directors shall be entitled to such reasonable
compensation for their services as directors and members of such committee as
shall be fixed from time to time by the Board of Directors, and shall also be
entitled to reimbursement for any reasonable expenses incurred in attending
meetings of the Board of Directors or of any such committee meetings. Any
director receiving such compensation shall not be barred from serving the
Corporation in any other capacity and receiving reasonable compensation for such
other services.
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Section 3.9 REMOVAL OF DIRECTORS.
(a) Subject to the rights of the holders, if any, of preferred stock of
the Corporation, to elect additional directors under specified circumstances,
any director may be removed at any time, but only for cause, upon the
affirmative vote of the holders of a majority of the combined voting power of
the then outstanding shares of stock of the Corporation entitled to vote
generally in the election of directors.
(b) Any of the directors may be removed for cause by the affirmative
vote of a majority of the entire Board of Directors then in office.
(c) A director may be removed by the stockholders or directors only at
a meeting called for the purpose of removing him or her, and the meeting notice
must state that the purpose or one of the purposes, of the meeting is the
removal of directors.
Section 3.10 ACTION WITHOUT MEETING. Any action required or permitted
to be taken at any meeting of the Board of Directors, or of any committee
thereof, may be taken without a meeting if all members of the Board of Directors
or such committee, as the case may be, consent thereto in writing, and such
written consent is filed with the minutes of the proceedings of the Board of
Directors or the committee, as the case may be.
Section 3.11 PARTICIPATION IN MEETING BY TELEPHONE. Any one or more
members of the Board of Directors or any committee thereof may participate in a
meeting of the Board of Directors or any committee thereof by means of a
conference telephone or similar communications equipment allowing all persons
participating in the meeting to hear each other at the same time. Participation
by such means shall constitute presence in person at such meeting.
Section 3.12 ENTIRE BOARD OF DIRECTORS. As used in these By-Laws
generally, the term "entire Board of Directors" means the total number of
directors which the Corporation would have if there were no vacancies.
ARTICLE IV
COMMITTEES
Section 4.1 COMMITTEES.
(a) The Board of Directors may, by resolution passed by a majority of
the entire Board of Directors, designate one (1) or more committees of the Board
of Directors, each consisting of one (1) or more members. To the extent provided
in the resolution, and permitted by law, the committee or committees shall have
and may exercise the powers of the Board of Directors in the management of the
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business and affairs of the Corporation. Any committee or committees shall have
the name or names determined from time to time by resolution adopted by the
Board of Directors. Any vacancy in a committee occurring from any cause
whatsoever may be filled by the Board of Directors.
(b) The Board may designate one (1) or more directors as alternate
members of any committee, who may replace any absent or disqualified member at
any meeting of the committee. In the absence or disqualification of a member of
a committee, and in the absence of a designation by the Board of Directors of an
alternate member to replace the absent or disqualified member, the member or
members present at any meeting and not disqualified from voting, whether or not
such member or members constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any such
absent or disqualified member. Any committee, to the extent allowed by law and
provided in the resolution establishing such committee, shall have and may
exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the Corporation. Each committee shall
keep regular minutes and report to the Board of Directors when required.
Section 4.2 RESIGNATION. Any member of a committee may resign at any
time upon notice to the Board of Directors. Such resignation shall be made in
writing and shall take effect at the time specified therein, or, if no time be
specified, at the time of its receipt by the Chairman of the Board of Directors,
if one be elected, the Chief Executive Officer, the President or the Secretary.
The acceptance of a resignation shall not be necessary to make it effective
unless so specified therein.
Section 4.3 QUORUM. A majority of the members of a committee shall
constitute a quorum. The act of a majority of the members of a committee present
at any meeting at which a quorum is present shall be the act of such committee.
The members of a committee shall act only as a committee, and the individual
members thereof shall have no powers as such.
Section 4.4 RECORD OF PROCEEDINGS. Each committee shall keep a record
of its acts and proceedings and shall report the same to the Board of Directors
when and as required by the Board of Directors.
Section 4.5 ORGANIZATION, MEETINGS, NOTICES. A committee may hold its
meetings at the principal office of the Corporation, or at any other place upon
which a majority of the committee may at any time agree. Each committee may make
such rules as it may deem expedient for the regulation and carrying on of its
meetings and proceedings. Any notice of a meeting of such Committee may be given
by the Secretary of the Corporation or by the chairman of the Committee and
shall be sufficiently given if given to each member at least two (2) days before
the day on which the meeting is to be held. Notice
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of a meeting need not be given to any member who submits a signed waiver of
notice before or after the meeting, nor to any director who attends the meeting
without protesting the lack of notice prior to the meeting or at its
commencement.
Section 4.6 COMPENSATION. The members of any committee shall be
entitled to such compensation as may be allowed them by resolution of the Board
of Directors.
ARTICLE V
OFFICERS
Section 5.1 GENERAL. The officers of the Corporation shall be chosen by
the Board of Directors and shall include a President and a Secretary. The Board
of Directors, in its discretion, may also choose a Chairman of the Board of
Directors (who must be a director), Chief Financial Officer, Assistant Chief
Financial Officers, Controller, Treasurer, Secretary, Assistant Treasurers and
one or more Vice Presidents, Assistant Secretaries, and other officers. Any
number of offices may be held by the same person, unless otherwise prohibited by
law, the Certificate of Incorporation or these By-Laws. The officers of the
Corporation need not be stockholders of the Corporation nor, except in the case
of the Chairman of the Board of Directors, need such officers be directors of
the Corporation.
Section 5.2 ELECTION. The Board of Directors at its first meeting held
after each annual meeting of stockholders shall elect the officers of the
Corporation 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 of Directors; and all officers of the Corporation shall hold office until
their successors are chosen and qualified, or until their earlier resignation or
removal. Any officer elected by the Board of Directors may be removed at any
time by the affirmative vote of a majority of the Board of Directors. Any
vacancy occurring in any office of the Corporation shall be filled by the Board
of Directors. The salaries of all officers of the Corporation shall be fixed by
the Board of Directors.
Section 5.3 VOTING SECURITIES OWNED BY THE CORPORATION. Powers of
attorney, proxies, waivers of notice of meeting, consents and other instruments
relating to securities owned by the Corporation may be executed in the name of
and on behalf of the Corporation by the Chief Executive Officer, the President
or any Vice President and any such officer may, in the name of and on behalf of
the Corporation, take all such action as any such officer may deem advisable to
vote in person or by proxy at any meeting of security holders of any corporation
in which the Corporation may own securities and at any such meeting shall
possess and may exercise any and all rights and power incident to the ownership
of such securities and which, as the owner thereof, the Corporation might
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have exercised and possessed if present. The Board of Directors may, by
resolution, from time to time confer like powers upon any other person or
persons.
Section 5.4 REMOVAL OF OFFICERS. Any officer of the Corporation may be
removed from office, for or without cause, by a vote of a majority of the Board
of Directors.
Section 5.5 RESIGNATION. Any officer of the Corporation may resign at
any time upon notice to the Corporation. Such resignation shall be in writing
and shall take effect at the time specified therein, and if no time be
specified, at the time of its receipt by the Chairman of the Board of Directors,
if one be elected, the Chief Executive Officer, the President or the Secretary.
The acceptance of a resignation shall not be necessary in order to make it
effective, unless so specified therein.
Section 5.6 OTHER OFFICERS AND AGENTS. The Board of Directors may
appoint such other officers and agents as it may deem advisable, 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 of Directors.
Section 5.7 CHAIRMAN OF THE BOARD OF DIRECTORS. The Chairman of the
Board of Directors, if one be elected, shall preside at all meetings of the
Board of Directors and shall have and perform such other duties as from time to
time may be assigned to him or her by the Board of Directors.
Section 5.8 CHIEF EXECUTIVE OFFICER. The Chief Executive Officer shall
be the chief executive officer of the Corporation and shall have the general
powers and duties of supervision and management usually vested in the office of
chief executive officer of a corporation. The Chief Executive Officer shall
preside at all meetings of the stockholders if present thereat, and, in the
absence or non-election of the Chairman of the Board of Directors, at all
meetings of the Board of Directors.
Section 5.9 PRESIDENT. The President shall be the chief operating
officer of the Company and shall have general supervision, direction and control
of the business of the Corporation. Except as the Board of Directors shall
authorize the execution thereof in some other manner, the President shall
execute bonds, mortgages and other contracts on behalf of the Corporation.
Section 5.10 VICE-PRESIDENT. Each Vice-President shall have such powers
and shall perform such duties as shall be assigned to him or her by the Board of
Directors.
Section 5.11 TREASURER. The Treasurer, if one be elected, shall have
the custody of the corporate funds and securities and shall keep full and
accurate account of receipts and disbursements in books belonging to the
Corporation. The Treasurer, if one be elected, shall deposit all moneys and
other valuables in the name and to the credit of the
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Corporation in such depositories as may be designated by the Board of Directors.
The Treasurer, if one be elected, shall disburse the funds of the Corporation as
may be ordered by the Board of Directors or the President, taking proper
vouchers for such disbursements. The Treasurer, if one be elected, shall render
to the President and Board of Directors at the regular meetings of the Board of
Directors, or whenever they may request it, an account of all his transactions
as Treasurer and of the financial condition of the Corporation. If required by
the Board of Directors, the Treasurer, if one be elected, shall give the
Corporation a bond for the faithful discharge of his or her duties in such
amount and with such surety as the Board of Directors shall prescribe.
Section 5.12 SECRETARY. The Secretary shall give, or cause to be given,
notice of all meetings of stockholders and directors, and all other notices
required by law or by these By-Laws, and in case of his or her absence or
refusal or neglect to do so, any such notice may be given by any person
thereunto directed by the President or the Board of Directors as provided in
these By-Laws. The Secretary shall attend all meetings of the Board of Directors
and of the stockholders and shall record all votes and the minutes of all the
proceedings of such meetings in a book to be kept for that purpose, and shall
perform like duties for any committee appointed by the Board of Directors. The
Secretary shall perform such other duties as may be assigned to him or her by
the Board of Directors or the President.
Section 5.13 ASSISTANT TREASURERS AND ASSISTANT SECRETARIES. Assistant
Treasurers and Assistant Secretaries, if any, shall have such powers and shall
perform such duties as shall be assigned to them, respectively, by the Board of
Directors.
ARTICLE VI
MISCELLANEOUS
Section 6.1 CERTIFICATE OF STOCK. Certificates representing stock in
the Corporation shall be signed by the Chairman of the Board of Directors, if
one be elected, the President or one of the Vice-Presidents and the Treasurer or
an Assistant Treasurer, or Secretary or an Assistant Secretary, and shall be
issued to each stockholder certifying the number of shares owned by him in the
Corporation. Any or all of the signatures on the certificate may be a facsimile.
In case any officer, transfer agent or registrar who has signed or whose
facsimile signature has been placed upon a certificate shall have ceased to be
such officer, transfer agent or registrar before such certificate is issued, it
may be issued by the Corporation with the same effect as if he or she was such
officer, transfer agent or registrar at the date of issue.
Section 6.2 LOST CERTIFICATES. The Board of Directors may direct a new
certificate of stock to be issued in the place of any certificate, theretofore
issued by the Corporation alleged to have been lost, stolen or destroyed, and
the Board of Directors
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may, in their discretion, require the owner of the lost, stolen or destroyed
certificate or his legal representative to give the Corporation a bond, in such
sum as they may direct, to indemnify the Corporation against any claim that may
be made against the Corporation by reason of the issue of such new certificate
and against any other liability in the premises, or may remit such holder to
such remedy or remedies as the holder may have under the laws of the State of
Delaware.
Section 6.3 TRANSFER OF SHARES. The shares of stock of the Corporation
shall be transferable only upon its books by the holders thereof in person or by
their duly authorized attorneys or legal representatives, and upon such transfer
the old certificates shall be surrendered to the Corporation by the delivery
thereof to the person in charge of the stock and transfer books and ledgers, or
to such other person as the Board of Directors may designate, by whom such
certificates shall be canceled, and new certificates shall thereupon be issued.
A record shall be made of each transfer and whenever a transfer shall be made
for collateral security, and not absolutely, it shall be so expressed in the
entry of the transfer.
Section 6.4 RECORD DATE. 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 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, in advance,
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
shall not be more than sixty (60) nor less than ten (10) days before the date of
any meeting of stockholders, nor more than sixty (60) days prior to such other
action for which the record date is fixed. 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 6.5 DIVIDENDS. Subject to any applicable provisions of law and
the Certificate of Incorporation, the Board of Directors may, at any regular or
special meeting, declare dividends upon the capital stock of the Corporation and
any such dividend may be paid in cash, in property, or in shares of the capital
stock. Before payment of any dividend there may be set apart out of any funds of
the Corporation available for dividends, such sum or sums as the Board of
Directors from time to time, in their discretion, deems proper for working
capital or as a reserve fund to meet contingencies or for equalizing dividends,
or for such other purposes as the directors shall deem conducive to the
interests of the Corporation.
Section 6.6 FISCAL YEAR. The fiscal year of the Corporation shall be
determined by resolution of the Board of Directors.
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Section 6.7 DISBURSEMENTS. All checks, drafts or other orders for the
payment of money, notes or other evidences of indebtedness issued in the name of
the Corporation shall be signed by such officer or officers, agent or agents of
the Corporation, and in such manner as shall be determined from time to time by
resolution of the Board of Directors.
Section 6.8 CORPORATE SEAL. The corporate seal shall have inscribed
thereon the name of the Corporation, the year of its organization and the words
"Corporate Seal, Delaware." The seal may be used by causing it or a facsimile
thereof to be impressed or affixed or reproduced or otherwise.
Section 6.9 NOTICE AND WAIVER OF NOTICE. Whenever any notice is
required by these By-Laws to be given, personal notice is not meant unless
expressly so stated, and any notice so required shall be deemed to be sufficient
if given by depositing the same in the United States mail, postage prepaid,
addressed to the person entitled thereto at his or her address as it appears on
the records of the Corporation, and such notice shall be deemed to have been
given on the day of such mailing. Stockholders not entitled to vote shall not be
entitled to receive notice of any meetings except as otherwise provided by
statute. Whenever any notice is required to be given under the provisions of any
law, or under the provisions of the Certificate of Incorporation 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.
ARTICLE VII
AMENDMENTS
Section 7.1 BY STOCKHOLDERS. These By-Laws may be amended or repealed
at any annual meeting of the stockholders or at any special meeting thereof, if
notice of the proposed amendment or repeal to be made is contained in the notice
of such special meeting; PROVIDED, HOWEVER, that, 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 fifty percent (50%) 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.
Section 7.2 BY DIRECTORS. The Board of Directors is expressly empowered
to adopt, amend or repeal the By-Laws of the Corporation. Any adoption,
amendment or repeal of the By-Laws of the Corporation by the Board of Directors
shall require the approval of a majority of the entire Board of Directors.
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ARTICLE VIII
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 8.1 RIGHT TO INDEMNIFICATION. Each person who was or is made a
party or is threatened to be made a party to or is otherwise involved in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), by reason of the fact that he or she
is or was a director or an officer 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 or other
enterprise, including service with respect to an employee benefit plan
(hereinafter an "indemnitee"), whether the basis of such proceeding is alleged
action in an official capacity as a director, officer, employee or agent or in
any other capacity while serving as a director, officer, employee or agent,
shall be indemnified and held harmless by the Corporation to the fullest extent
authorized by the Delaware General Corporation Law, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the Corporation to provide broader indemnification
rights than such law permitted the Corporation to provide prior to such
amendment), against all expense, liability and loss (including attorneys' fees,
judgments, fines, ERISA excise taxes or penalties and amounts paid in
settlement) actually and reasonably incurred or suffered by such indemnities in
connection therewith; provided, however, that, except as provided in Section 8.3
with respect to proceedings to enforce rights to indemnification, the
Corporation shall indemnify any such indemnities in connection with a proceeding
(or part thereof) initiated by such indemnitee only if such proceeding (or part
thereof) was authorized by the Board of Directors of the Corporation.
Section 8.2 RIGHT TO ADVANCEMENT OF EXPENSES. The right to
indemnification conferred in Section 8.3 shall include the right to be paid by
the Corporation the expenses (including attorney's fees) incurred in defending
any such proceeding in advance of its final disposition (hereinafter an
"advancement of expenses"); provided, however, that, if the Delaware General
Corporation Law requires, an advancement of expenses incurred by an indemnitee
in his or her capacity as a director or officer (and not in any other capacity
in which service was or is rendered by such indemnitee, including, without
limitation, service to an employee benefit plan) it shall be made only upon
delivery to the Corporation of an undertaking (hereinafter an "undertaking"), by
or on behalf of such indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right to appeal (hereinafter a "final adjudication") that such
indemnitee is not entitled to be indemnified for such expenses under this
Section 8.2 or otherwise. The rights to indemnification and to the advancement
of expenses conferred in Sections 8.1 and 8.2 shall be contract rights and such
rights shall continue as to an indemnitee who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the indemnitee's
heirs, executors and administrators.
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Section 8.3 RIGHT OF INDEMNITEE TO BRING SUIT. If a claim under Section
8.1 or 8.2 is not paid in full by the Corporation within sixty (60) days after a
written claim has been received by the Corporation, except in the case of a
claim for an advancement of expenses, in which case the applicable period shall
be twenty (20) days, the indemnitee may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim. If successful
in whole or in part in any such suit, or in a suit brought by the Corporation to
recover an advancement of expenses pursuant to the terms of an undertaking, the
indemnitee shall be entitled to be paid also the expense of prosecuting or
defending such suit. In (i) any suit brought by the indemnitee to enforce a
right to indemnification hereunder (but not in a suit brought by the indemnitee
to enforce a right to an advancement of expenses) it shall be a defense that,
and (ii) in any suit brought by the Corporation to recover an advancement of
expenses pursuant to the terms of an undertaking, the Corporation shall be
entitled to recover such expenses upon a final adjudication that, the indemnitee
has not met any applicable standard for indemnification set forth in the
Delaware General Corporation Law. Neither the failure of the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of suit
that indemnification of the indemnitee is proper in the circumstances because
the indemnitee has met the applicable standard of conduct set forth in the
Delaware General Corporation Law, nor an actual determination by the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) that the indemnitee has not met such applicable standard of
conduct, shall create a presumption that the indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by the
indemnitee, be a defense to such suit. In any suit brought by the indemnitee to
enforce a right to indemnification or to an advancement of expenses hereunder,
or brought by the Corporation to recover an advancement of expenses pursuant to
the terms of an undertaking, the burden of proving that the indemnitee is not
entitled to be indemnified, or to such advancement of expenses, under this
ARTICLE VIII or otherwise shall be on the Corporation.
Section 8.4 NON-EXCLUSIVITY OF RIGHTS. The rights to indemnification
and to the advancement of expenses conferred in this ARTICLE VIII shall not be
exclusive of any other right which any person may have or hereafter acquire
under any statute, the Certificate of Incorporation, By-Laws, agreement, vote of
stockholders or disinterested directors or otherwise.
Section 8.5 INSURANCE. The Corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or other
enterprise against any expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
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Section 8.6 INDEMNIFICATION OF EMPLOYEES AND AGENTS OF THE CORPORATION.
The Corporation may, to the extent authorized from time to time by the Board of
Directors, grant rights to indemnification and to the advancement of expenses to
any employee or agent of the Corporation to the fullest extent of the provisions
of this Article with respect to the indemnification and advancement of expenses
of directors and officers of the Corporation.
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