EXHIBIT 3.2
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AMENDED AND RESTATED
BYLAWS
OF
NEXTWAVE WIRELESS INC.
(a Delaware corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of NextWave Wireless
Inc. (the "Corporation") shall be fixed in the Corporation's certificate of
incorporation, as the same may be amended and/or restated from time to time (as
so amended and/or restated, the "Certificate of Incorporation").
Section 2. Other Offices. The Corporation's Board of Directors (the "Board
of Directors") may at any time establish other offices at any place or places
where the Corporation is qualified to do business. The principal executive
offices of the Corporation shall be located at 1267 High Bluff Drive, San Diego,
California, or at such other place as may be fixed by resolution of the Board of
Directors.
ARTICLE II
CORPORATE SEAL
The Corporation may adopt a corporate seal, which shall be adopted and
which may be altered by the Board of Directors. The Corporation may use the
corporate seal by causing it or a facsimile thereof to be impressed or affixed
or in any other manner reproduced.
ARTICLE III
STOCKHOLDERS' MEETINGS
Section 1. Place of Meetings. Meetings of the stockholders of the
Corporation shall be held at such place, either within or without the State of
Delaware, as may be designated from time to time by the Board of Directors. The
Board of Directors may, in its sole discretion, determine that a meeting of
stockholders shall not be held at any place, but may instead be held solely by
means of remote communication as authorized by Section 211(a)(2) of the General
Corporation Law of the State of Delaware (the "DGCL"). In the absence of such
designation or determination, stockholders' meetings shall be held at the
principal executive offices of the Corporation as established pursuant to
Article I, Section 2 hereof.
Section 2. Annual Meeting.
(a) The annual meeting of the stockholders of the Corporation, for
the purpose of election of Directors to succeed those whose terms expire and for
the transaction of such other business as may lawfully come before it, shall be
held on such date and at such time as may be designated from time to time by the
Board of Directors.
(b) At an annual meeting of the stockholders, only such business
shall be conducted as shall have been properly brought before the meeting. To be
properly brought before an annual meeting, business must be: (A) specified in
the notice of meeting (or any supplement thereto) given by or at the direction
of the Board of Directors, (B) otherwise properly brought before the meeting by
or at the direction of the Board of Directors, or (C) otherwise properly brought
before the meeting by a stockholder. For business to be properly brought before
an annual meeting by a stockholder, the stockholder must have given timely
notice thereof in writing to the Secretary of the Corporation. To be timely, a
stockholder's notice must be received at the Corporation's principal executive
offices not later than the close of business on the 90th day nor earlier than
the close of business on the 120th day prior to the first anniversary of the
date that the Corporation's proxy statement was released to stockholders in
connection with the previous year's annual meeting of stockholders, except that
if no annual meeting was held in the previous year or the date of the annual
meeting is more than 30 calendar days before or more than 60 days after such
anniversary date, notice by the stockholders to be timely must be so delivered
not earlier than the close of business on the 120th day prior to such annual
meeting and not later than the close of business on the later of the 90th day
prior to such annual meeting or the 10th day following the day on which the date
of the annual meeting is publicly announced by the Corporation. "Public
announcement" shall mean disclosure in a press release reported by the Dow Jones
News Service, Associated Press or 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 Securities Exchange Act of
1934, as amended (the "1934 Act"). A stockholder's notice to the Secretary shall
set forth as to each matter the stockholder proposes to bring before the annual
meeting: (i) a brief description of the business desired to be brought before
the annual meeting and the reasons for conducting such business at the annual
meeting, (ii) the name and address, as they appear on the Corporation's books,
of the stockholder proposing such business, (iii) the class and number of shares
of the Corporation which are beneficially owned by the stockholder, (iv) any
material interest of the stockholder in such business and (v) any other
information that is required to be provided by the stockholder pursuant to
Regulation 14A under the 1934 Act, in his capacity as a proponent to a
stockholder proposal. Notwithstanding the foregoing, in order to include
information with respect to a stockholder proposal in the Corporation's proxy
statement and form of proxy for a stockholder's meeting, stockholders must
provide notice as required by the regulations promulgated under the 1934 Act.
Notwithstanding anything in these Bylaws to the contrary, no business shall be
conducted at any annual meeting except in accordance with the procedures set
forth in this paragraph (b). The chairman of the annual meeting shall, if the
facts warrant, determine and declare at the meeting that business was not
properly brought before the meeting and in accordance with the provisions of
this paragraph (b), and, if he should so determine, he shall so declare at the
meeting that any such business not properly brought before the meeting shall not
be transacted.
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(c) Subject to any applicable provisions of the Certificate of
Incorporation, only persons who are nominated in accordance with the procedures
set forth in this paragraph (c) shall be eligible for election as Directors.
Nominations of persons for election to the Board of Directors may be made at a
meeting of stockholders by or at the direction of the Board of Directors or by
any stockholder of the Corporation entitled to vote in the election of Directors
at the meeting who complies with the notice procedures set forth in this
paragraph (c). 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 in accordance with the provisions of paragraph
(b) of this Article III, Section 2. Such stockholder's notice shall set forth
(i) as to each person, if any, whom the stockholder proposes to nominate for
election or re-election as a Director: (A) the name, age, business address and
residence address of such person, (B) the principal occupation or employment of
such person, (C) the class and number of shares of the Corporation which are
beneficially owned by such person, (D) a description of all arrangements or
understandings between the stockholder and each nominee and any other person or
persons (naming such person or persons) pursuant to which the nominations are to
be made by the stockholder, and (E) any other 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 1934 Act (including without limitation such person's written consent
to being named in the proxy statement, if any, as a nominee and to serving as a
Director if elected); and (ii) as to such stockholder giving notice, the
information required to be provided pursuant to paragraph (b) of this Article
III, Section 2. At the request of the Board of Directors, any person nominated
by a stockholder for election as a Director shall furnish to the Secretary of
the Corporation that information required to be set forth in the stockholder's
notice of nomination which pertains to the nominee. No person shall be eligible
for election as a Director of the Corporation unless nominated in accordance
with the procedures set forth in this paragraph (c). The chairman of the meeting
shall, if the facts warrant, determine and declare at the meeting that a
nomination was not made in accordance with the procedures prescribed by these
Bylaws, and if he should so determine, he shall so declare at the meeting, and
the defective nomination shall be disregarded.
Section 3. Special Meetings.
(a) Special meetings of the stockholders of the Corporation may be
called, for any purpose or purposes, by the persons specified in Article V of
the Certificate of Incorporation and shall be held at such place, on such date
and at such time as the Board of Directors shall fix.
(b) If a special meeting is called by the stockholders of the
Corporation as provided in Article V of the Certificate of Incorporation, the
request shall be in writing, specifying the general nature of the business
proposed to be transacted, and shall be delivered personally or sent by
registered mail or by telegraphic or other facsimile transmission to the
Secretary of the Corporation. No business may be transacted at such special
meeting otherwise than specified in such notice. The Board of Directors shall
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determine the time and place of such special meeting, which shall be held not
less than twenty (20) nor more than one hundred twenty (120) days after the date
of the receipt of the request. Upon determination of the time and place of the
meeting, the Secretary shall cause notice to be given to the stockholders
entitled to vote, in accordance with the provisions of Article III, Section 4 of
these Bylaws. If the notice is not given within sixty (60) days after the
receipt of the request, the person or persons requesting the meeting may set the
time and place of the meeting and give the notice. Nothing contained in this
paragraph (b) shall be construed as limiting, fixing, or affecting the time when
a meeting of stockholders called by action of the Chairman of the Board of
Directors or the Board of Directors may be held.
Section 4. Notice of Meetings. Except as otherwise provided by law or the
Certificate of Incorporation, written notice of each meeting of stockholders
shall be given not less than ten (10) nor more than sixty (60) days before the
date of the meeting to each stockholder entitled to vote at such meeting, such
notice to specify the place, if any, date and hour, the means of remote
communication, if any, and purpose or purposes of the meeting. Notice of the
time, place, means of remote communication and purpose of any meeting of
stockholders may be waived in writing, signed by the person entitled to notice
thereof, either before or after such meeting, and will be waived by any
stockholder by his attendance thereat in person or by proxy, except when the
stockholder attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened. Any stockholder so waiving notice of such
meeting shall be bound by the proceedings of any such meeting in all respects as
if due notice thereof had been given.
Section 5. Quorum. At all meetings of stockholders, except where otherwise
provided by statute or by the Certificate of Incorporation, or by these Bylaws,
the presence, in person or by proxy duly authorized, of the holders of a
majority in voting power of the outstanding shares of stock entitled to vote
thereat shall constitute a quorum for the transaction of business. In the
absence of a quorum, any meeting of stockholders may be adjourned, from time to
time, either by the chairman of the meeting or by vote of the holders of a
majority of the shares represented thereat, but no other business shall be
transacted at such meeting. The stockholders present at a duly called or
convened meeting, at which a quorum is present, may continue to transact
business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum. Except as otherwise provided by law,
the Certificate of Incorporation or these Bylaws, all action taken by the
affirmative vote of the holders of a majority of the voting power of the shares
of stock entitled to vote at any meeting at which a quorum is present shall be
valid and binding upon the Corporation; provided, however, that Directors shall
be elected by a plurality of the votes of the shares present in person or
represented by proxy at the meeting and entitled to vote on the election of
Directors. Where a separate vote by a class or series is required, a majority of
the outstanding shares of such class or series, present in person or represented
by proxy, shall constitute a quorum entitled to take action with respect to that
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vote on that matter and, except as otherwise provided by law, the Certificate of
Incorporation or these Bylaws, the affirmative vote of the majority in voting
power of shares of such class or classes present in person or represented by
proxy at the meeting shall be the act of such class or series.
Section 6. Adjournment and Notice of Adjourned Meetings. Any annual or
special meeting of stockholders, whether or not a quorum is present, may be
adjourned for any reason from time to time either by the chairman of the meeting
or by the holders of a majority in voting power of the shares of stock entitled
to vote thereat. When a meeting is adjourned to another time or place, notice
need not be given of the adjourned meeting if the time, date and place, if any,
thereof and the means of remote communication, if any, are announced at the
meeting at which the adjournment is taken. At the adjourned meeting, the
Corporation may transact any business which might have been transacted at the
original meeting. If the adjournment is for more than thirty (30) days or if
after the adjournment a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each stockholder of record
entitled to vote at the meeting.
Section 7. Voting Rights. For the purpose of determining those
stockholders entitled to vote at any meeting of the stockholders, except as
otherwise provided by law, only persons in whose names shares stand on the stock
records of the Corporation on the record date, as provided in Article III,
Section 9 of these Bylaws, shall be entitled to vote at any meeting of
stockholders. Every person entitled to vote shall have the right to do so either
in person or by an agent or agents authorized by a written proxy executed by
such person or his duly authorized agent, which proxy shall be filed with the
Secretary at or before the meeting at which it is to be used. An agent so
appointed need not be a stockholder. No proxy shall be voted after three (3)
years from its date of creation unless the proxy provides for a longer period.
All elections of Directors shall be by written ballot.
Section 8. List of Stockholders. The Secretary shall prepare and make, at
least ten (10) days before every meeting of stockholders, a complete list of the
stockholders entitled to vote at said meeting, arranged in alphabetical order,
showing the address of each stockholder and the number of shares registered in
the name of each stockholder. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, for a period of at least
ten (10) days prior to the meeting (a) on a reasonably accessible electronic
network, provided that the information required to gain access to such list is
provided with the notice of meeting or (b) during regular business hours at the
principal executive offices of the Corporation as established pursuant to
Article I, Section 2 hereof. The list shall be produced and kept open at the
time and place of meeting during the whole time thereof and may be inspected by
any stockholder who is present.
Section 9. Organization.
(a) At every meeting of stockholders, the Chairman of the Board of
Directors, or, if a Chairman has not been appointed or is absent, the Chief
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Executive Officer, or, if the Chief Executive Officer is absent, the President,
or if the President is absent, the most senior Vice President present, or in the
absence of any such officer, a chairman of the meeting chosen by a majority in
voting power of the shares of stock entitled to vote thereat, present in person
or by proxy, shall act as chairman. The Secretary, or, in his absence, an
Assistant Secretary or in the absence of the Secretary and an Assistant
Secretary, a person whom the chairman of the meeting shall appoint, shall act as
secretary of the meeting.
(b) The Board of Directors shall be entitled to make such rules or
regulations for the conduct of meetings of stockholders as it shall deem
necessary, appropriate or convenient. Subject to such rules and regulations of
the Board of Directors, if any, the chairman of the meeting shall have the right
and authority to prescribe such rules, regulations and procedures and to do all
such acts as, in the judgment of such chairman, are necessary, appropriate or
convenient for the proper conduct of the meeting, including, without limitation,
establishing an agenda or order of business for the meeting, rules and
procedures for maintaining order at the meeting and the safety of those present,
limitations on participation in such meeting to stockholders of record of the
Corporation and their duly authorized and constituted proxies and such other
persons as the chairman shall permit, restrictions on entry to the meeting after
the time fixed for the commencement thereof, limitations on the time allotted to
questions or comments by participants and regulation of the opening and closing
of the polls for balloting on matters which are to be voted on by ballot. Unless
and to the extent determined by the Board of Directors or the chairman of the
meeting, meetings of stockholders shall not be required to be held in accordance
with rules of parliamentary procedure.
ARTICLE IV
DIRECTORS
Section 1. Number and Term of Office. The authorized number of Directors
of the Corporation shall be fixed from time to time in the manner provided by
Article VI of the Certificate of Incorporation. The term of office of the
Directors of the Corporation shall be as provided in Article VI of the
Certificate of Incorporation. If for any cause, the Directors shall not have
been elected at an annual meeting, they may be elected as soon thereafter as
convenient at a special meeting of the stockholders called for that purpose in
the manner provided in Article V of the Certificate of Incorporation.
Section 2. Vacancies. Vacancies on the Board of Directors shall be filled
in the manner provided by Article VI of the Certificate of Incorporation. A
vacancy in the Board of Directors shall be deemed to exist in the case of the
death, removal or resignation of any Director, or if the stockholders fail at
any meeting of stockholders at which Directors are to be elected to elect the
number of Directors then constituting the whole Board of Directors.
Section 3. Resignation. Any Director may resign at any time by delivering
his written resignation to the Secretary, such resignation to specify whether it
will be effective at a particular time, upon receipt by the Secretary or at the
pleasure of the Board of Directors. If no such specification is made, it shall
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be deemed effective at the pleasure of the Board of Directors. When one or more
Directors shall resign from the Board of Directors, effective at a future date,
a majority of the Directors then in office, including those who have so
resigned, shall have power to fill such vacancy or vacancies, the vote thereon
to take effect when such resignation or resignations shall become effective.
Section 4. Removal. The Board of Directors, or any individual Director,
may be removed from office at any time in the manner provided by the DGCL.
Section 5. Meetings.
(a) Place of Meetings. The Board may hold meetings, both regular
and special, either within or outside the State of Delaware.
(b) Telephone Meetings. Any member of the Board of Directors, or
of any committee thereof, may participate in a meeting by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and participation in a meeting
by such means shall constitute presence in person at such meeting.
(c) Annual Meetings. The annual meeting of the Board of Directors
shall be held immediately after the annual meeting of stockholders and at the
place where such meeting is held. No notice of an annual meeting of the Board of
Directors shall be necessary and such meeting shall be held for the purpose of
electing officers and transacting such other business as may lawfully come
before it.
(d) Regular Meetings. Regular meetings of the Board of Directors
may be held with at least five business days prior notice at such time and at
such place as shall from time to time be determined by the Board of Directors.
(e) Special Meetings; Notice. Special meetings of the Board of
Directors may be called by the Chairman of the Board of Directors, the Chief
Executive Officer, a President, the Secretary or any two of the Directors. The
person(s) authorized to call special meetings of the Board of Directors may fix
the place and time of the meeting. Notice of the time and place of all special
meetings of the Board of Directors shall be given at least twenty-four (24)
hours before the date of the meeting. Notice of the special meeting need not
state the purpose of such meeting. Notice of any meeting may be waived in
writing at any time before or after the meeting and will be waived by any
Director by attendance thereat, except when the Director attends the meeting for
the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened.
(f) Waiver of Notice. The transaction of all business at any
meeting of the Board of Directors, or any committee thereof, however called or
noticed, or wherever held, shall be as valid as though had at a meeting duly
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held after regular call and notice, if a quorum be present and if, either before
or after the meeting, each of the Directors not present shall sign a written
waiver of notice, or a consent to holding such meeting, or an approval of the
minutes thereof. All such waivers, consents or approvals shall be filed with the
corporate records or made a part of the minutes of the meeting.
Section 6. Quorum and Voting.
(a) Unless the Certificate of Incorporation requires a greater
number, a quorum of the Board of Directors shall consist of a majority of the
exact number of Directors fixed from time to time by the Board of Directors in
accordance with the Certificate of Incorporation, but not less than one (1);
provided, however, at any meeting whether a quorum be present or otherwise, a
majority of the Directors present may adjourn from time to time until the time
fixed for the next regular meeting of the Board of Directors, without notice
other than by announcement at the meeting.
(b) At each meeting of the Board of Directors at which a quorum is
present, all questions and business shall be determined by a vote of a majority
of the Directors present, unless a different vote be required by law, the
Certificate of Incorporation or these Bylaws.
Section 7. Action Without Meeting. Unless otherwise restricted by the
Certificate of Incorporation or these Bylaws, 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
committee, as the case may be, consent thereto in writing or by electronic
transmission, and the writing or writings or electronic transmission or
transmissions are filed with the minutes of proceedings of the Board of
Directors or committee thereof.
Section 8. Fees and Compensation. Directors shall be entitled to such
compensation for their services as may be approved by the Board of Directors or
the Nominating and Corporate Governance Committee, including, if so approved, a
fixed sum and expenses of attendance, if any, for attendance at each regular or
special meeting of the Board of Directors and at any meeting of a committee of
the Board of Directors. Nothing herein contained shall be construed to preclude
any Director from serving the Corporation in any other capacity as an officer,
agent, employee, or otherwise and receiving compensation therefor.
Section 9. Committees.
(a) Executive Committee. The Board of Directors may by resolution
passed by a majority of the whole Board of Directors appoint an Executive
Committee to consist of one (1) or more members of the Board of Directors. The
Executive Committee, to the extent permitted by law and specifically granted by
the Board of Directors, shall have and may exercise when the Board of Directors
is not in session all powers of the Board of Directors in the management of the
business and affairs of the Corporation, including, without limitation, the
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power and authority to declare a dividend or to authorize the issuance of stock,
except such committee shall not have the power or authority to amend the
Certificate of Incorporation, to adopt an agreement of merger or consolidation,
to recommend to the stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets, to recommend to the
stockholders of the Corporation a dissolution of the Corporation or a revocation
of a dissolution or to amend these Bylaws.
(b) Audit Committee. The Board of Directors shall establish an
Audit Committee whose principal purpose shall be to oversee the Corporation's
and its subsidiaries' accounting and financial reporting processes, internal
systems of control, independent auditor relationships and audits of consolidated
financial statements of the Corporation and its subsidiaries. The Audit
Committee shall also determine the appointment of the independent auditors of
the Corporation and any change in such appointment and monitor the independence
of the Corporation's auditors. In addition, the Audit Committee shall assume
such other duties and responsibilities as the Board of Directors may confer upon
the committee from time to time.
(c) Nominating and Corporate Governance Committee. The Board of
Directors shall establish a Nominating and Corporate Governance Committee whose
principal duties shall be to assist the Board of Directors by identifying
individuals qualified to become Board of Directors members consistent with
criteria approved by the Board of Directors, to recommend to the Board of
Directors for its approval the slate of nominees to be proposed by the Board of
Directors to the stockholders for election to the Board of Directors, to develop
and recommend to the Board of Directors the governance principles applicable to
the Corporation, as well as such other duties and responsibilities as the Board
of Directors may confer upon the committee from time to time. In the event the
Nominating and Corporate Governance Committee shall not be recommending a then
incumbent director for inclusion in the slate of nominees to be proposed by the
Board of Directors to the stockholders for election to the Board of Directors,
and provided such incumbent director has not notified the Committee that he or
she shall be resigning or that he or she does not intend to stand for
re-election to the Board of Directors, then, in the case of an election to be
held at an annual meeting of stockholders, the Committee shall recommend the
slate of nominees to the Board of Directors at least thirty (30) days prior to
the latest date required by the provisions of these Bylaws for stockholders to
submit nominations for directors at such annual meeting, or in the case of an
election to be held at a special meeting of stockholders, at least ten (10) days
prior to the latest date required by the provisions of these Bylaws for
stockholders to submit nominations for directors at such special meeting.
(d) Compensation Committee. The Board of Directors shall establish
a Compensation Committee whose principal duties shall be to review employee
compensation policies and programs as well as the compensation of the chief
executive officer and other executive officers of the Corporation, as well as
such other duties and responsibilities as the Board of Directors may confer upon
the committee from time to time.
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(e) Other Committees. The Board of Directors may, by resolution or
resolutions passed by a majority of the whole Board of Directors, from time to
time appoint such other committees as may be permitted by law. Such other
committees appointed by the Board of Directors shall consist of one (1) or more
members of the Board of Directors and shall have such powers and perform such
duties as may be prescribed by the resolution or resolutions creating such
committees, but in no event shall such committee have the powers denied to the
Executive Committee in these Bylaws.
(f) Term. Each member of a committee of the Board of Directors
shall serve a term on the committee coexistent with such member's term on the
Board of Directors. The Board of Directors, subject to the provisions of
subsections (a) or (b) of this Bylaw, may at any time increase or decrease the
number of members of a committee or terminate the existence of a committee. The
membership of a committee member shall terminate on the date of his death or
voluntary resignation from the committee or from the Board of Directors. The
Board of Directors may at any time for any reason remove any individual
committee member and the Board of Directors may fill any committee vacancy
created by death, resignation, removal or increase in the number of members of
the committee. The Board of Directors may designate one or more Directors as
alternate members of any committee, who may replace any absent or disqualified
member at any meeting of the committee, and, in addition, in the absence or
disqualification of any member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
they 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.
(g) Meetings. Unless the Board of Directors shall otherwise
provide, regular meetings of any committee of the Board of Directors shall be
held at such times and places as are determined by the Board of Directors, or by
any such committee thereof, and when notice thereof has been given to each
member of such committee, no further notice of such regular meetings need be
given thereafter. Special meetings of any such committee may be held at any
place which has been determined from time to time by such committee, and may be
called by any Director who is a member of such committee, upon written notice to
the members of such committee of the time and place of such special meeting
given in the manner provided for the giving of written notice to members of the
Board of Directors of the time and place of special meetings of the Board of
Directors. Notice of any special meeting of any committee may be waived in
writing at any time before or after the meeting and shall be waived by any
Director by attendance thereat, except when the Director attends such special
meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called or
convened. A majority of the authorized number of members of any such committee
shall constitute a quorum for the transaction of business, and the act of a
majority of those present at any meeting at which a quorum is present shall be
the act of such committee.
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Section 10. Organization. At every meeting of the Board of Directors, the
Chairman of the Board of Directors, or, if a Chairman has not been appointed or
is absent, the Chief Executive Officer, or if the Chief Executive Officer is
absent, the President, or if the President is absent, the most senior Vice
President, or, in the absence of any such officer, a chairman of the meeting
chosen by a majority of the Directors present thereat, shall preside over the
meeting. The Secretary, or in his absence, an Assistant Secretary or in the
absence of the Secretary and an Assistant Secretary, a person whom the chairman
of the meeting shall appoint, shall act as secretary of the meeting.
ARTICLE V
OFFICERS
Section 1. Officers Designated. The officers of the Corporation shall
include, if and when designated by the Board of Directors, the Chairman of the
Board of Directors, the Chief Executive Officer, the President, one or more Vice
Presidents, the Chief Financial Officer, the Secretary, the Treasurer and the
Controller. Each such officer shall serve from the time of his appointment until
a successor shall be chosen and qualified or until his earlier resignation or
removal. The Board of Directors may also appoint one or more Assistant
Secretaries, Assistant Treasurers, Assistant Controllers and such other officers
and agents with such powers and duties as it shall deem necessary. The Board of
Directors may assign such additional titles to one or more of the officers as it
shall deem appropriate. Any one person may hold any number of offices of the
Corporation at any one time unless specifically prohibited therefrom by law.
Section 2. Tenure and Duties of Officers.
(a) General. All officers shall hold office at the pleasure of the
Board of Directors and until their successors shall have been duly elected and
qualified, unless sooner removed. Any officer may be removed from office at any
time, either with or without cause, by the vote or written consent of a majority
of the Directors in office at the time, or by any committee or superior officers
upon whom such power of removal may have been conferred by the Board of
Directors. If the office of any officer becomes vacant for any reason, the
vacancy may be filled by the Board of Directors.
(b) Duties of Chairman of the Board of Directors. The Chairman of
the Board of Directors, when present, shall preside at all meetings of the
stockholders and the Board of Directors. The Chairman of the Board of Directors
shall perform other duties commonly incident to his office and shall also
perform such other duties and have such other powers as the Board of Directors
shall designate from time to time.
(c) Duties of Chief Executive Officer. The Chief Executive Officer
shall, subject to the control of the Board of Directors, have general
supervision, direction and control of the business and the officers of the
Corporation. In the absence of the Chairman of the Board of Directors, or if
there be none, the Chief Executive Officer shall preside at all meetings of the
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stockholders and at all meetings of the Board of Directors. The Chief Executive
Officer shall exercise and perform such other powers and duties as may from time
to time be assigned to him by the Board of Directors.
(d) Duties of President. Unless the Chairman of the Board of
Directors has been appointed and is present, and in the absence of the Chief
Executive Officer, or if there be none, the President shall preside at all
meetings of the stockholders and at all meetings of the Board of Directors. The
President shall perform other duties commonly incident to his office and shall
also perform such other duties and have such other powers as the Board of
Directors shall designate from time to time.
(e) Duties of Vice Presidents. The Vice Presidents, in the order
of their seniority, may assume and perform the duties of the President in the
absence or disability of the President or whenever the office of President is
vacant. The Vice Presidents shall perform other duties commonly incident to
their office and shall also perform such other duties and have such other powers
as the Board of Directors or the President shall designate from time to time.
(f) Duties of Chief Financial Officer; Treasurer. Unless otherwise
designated by the Board of Directors, the Chief Financial Officer shall be the
Treasurer of the Corporation. The Chief Financial Officer shall keep or cause to
be kept the books of account of the Corporation in a thorough and proper manner
and shall render statements of the financial affairs of the Corporation in such
form and as often as required by the Board of Directors or the President. The
Chief Financial Officer, subject to the order of the Board of Directors, shall
have the custody of all funds and securities of the corporation. The Chief
Financial Officer, and if there be a separate office of the Treasurer, the
Treasurer, shall perform such duties and have such powers, as are commonly
incident to such office and shall also perform such other duties and have such
other powers as the Board of Directors or the President or Chief Executive
Officer shall designate from time to time. The President may direct the
Treasurer or any Assistant Treasurer, or the Controller or any Assistant
Controller to assume and perform the duties of the Chief Financial Officer in
the absence or disability of the Chief Financial Officer, and each Assistant
Treasurer shall perform other duties commonly incident to his office and shall
also perform such other duties and have such other powers as the Board of
Directors or the President shall designate from time to time.
(g) Duties of Secretary. The Secretary shall attend all meetings
of the stockholders and of the Board of Directors and shall record all acts and
proceedings thereof in the minute book of the Corporation. The Secretary shall
give notice in conformity with these Bylaws of all meetings of the stockholders
and of all meetings of the Board of Directors and any committee thereof
requiring notice. The Secretary shall perform all other duties given him in
these Bylaws and other duties commonly incident to his office and shall also
perform such other duties and have such other powers as the Board of Directors
shall designate from time to time. The President may direct any Assistant
Secretary to assume and perform the duties of the Secretary in the absence or
disability of the Secretary, and each Assistant Secretary shall perform other
duties commonly incident to his office and shall also perform such other duties
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and have such other powers as the Board of Directors or the President shall
designate from time to time.
Section 3. Delegation of Authority. The Board of Directors may from time
to time delegate the powers or duties of any officer to any other officer or
agent, notwithstanding any provision hereof.
Section 4. Resignations. Any officer may resign at any time by giving
written notice to the Board of Directors or to the President or to the
Secretary. Any such resignation shall specify whether it will be effective at a
particular time, upon receipt by the President or the Secretary or at the
pleasure of the Board of Directors. If no such specification is made, it shall
be deemed effective at the pleasure of the Board of Directors. Unless otherwise
specified in such notice, the acceptance of any such resignation shall not be
necessary to make it effective. Any resignation shall be without prejudice to
the rights, if any, of the Corporation under any contract with the resigning
officer.
ARTICLE VI
EXECUTION OF CORPORATE INSTRUMENTS
AND VOTING OF SECURITIES OWNED BY THE CORPORATION
Section 1. Execution of Corporate Instruments. The Board of Directors may,
in its discretion, determine the method and designate the signatory officer or
officers, or other person or persons, to execute on behalf of the Corporation
any corporate instrument or document, or to sign on behalf of the Corporation
the corporate name without limitation, or to enter into contracts on behalf of
the Corporation, except where otherwise provided by law or these Bylaws, and
such execution or signature shall be binding upon the Corporation. Unless
authorized or ratified by the Board of Directors or within the agency power of
an officer, no officer, agent or employee shall have any power or authority to
bind the Corporation by any contract or engagement or to pledge its credit or to
render it liable for any purpose or for any amount.
Section 2. Voting of Securities Owned by the Corporation. All stock and
other securities of other corporations owned or held by the Corporation for
itself, or for other parties in any capacity, shall be voted, and all proxies
with respect thereto shall be executed, by the person authorized so to do by
resolution of the Board of Directors, or, in the absence of such authorization,
by the Chairman of the Board of Directors, the Chief Executive Officer, the
President, or any Vice President.
ARTICLE VII
SHARES OF STOCK
Section 1. Form and Execution of Certificates. There shall be issued to
each holder of fully paid shares of the capital stock of the Corporation a
certificate or certificates for such shares; provided that the Board of
Directors may provide by resolution or resolutions that some or all of any or
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all classes or series of its stock shall be uncertificated shares. Any such
resolution shall not apply to shares represented by a certificate until such
certificate is surrendered to the Corporation. Every holder of shares of the
Corporation represented by certificates shall be entitled to have a certificate
signed by, or in the name of, the Corporation by the Chairman of the Board of
Directors, or the Chief Executive Officer, or the President or any Vice
President and by the Treasurer or any Assistant Treasurer, or the Secretary or
any Assistant Secretary, representing the number of shares registered in
certificate form. Any or all such signatures may be facsimiles. In case any
officer, transfer agent or registrar who has signed or whose facsimile signature
has been placed upon a certificate has ceased to be such officer, transfer agent
or registrar before such certificate is issued, it may be issued by the
Corporation with the same effect as if such person were such officer, transfer
agent or registrar at the date of issue.
Section 2. Lost Certificates. A new certificate or certificates shall be
issued in place of any certificate or certificates theretofore issued by the
Corporation alleged to have been lost, stolen, or destroyed, upon the making of
an affidavit of that fact by the person claiming the certificate of stock to be
lost, stolen, or destroyed. The Corporation may require, as a condition
precedent to the issuance of a new certificate or certificates, the owner of
such lost, stolen, or destroyed certificate or certificates, or his legal
representative, to advertise the same in such manner as it shall require or to
give the Corporation a surety bond in such form and amount as it may direct as
indemnity against any claim that may be made against the Corporation with
respect to the certificate alleged to have been lost, stolen, or destroyed.
Section 3. Transfers.
(a) Transfers of record of shares of stock of the Corporation
shall be made only upon its books by the holders thereof, in person or by
attorney duly authorized, and upon the surrender of a properly endorsed
certificate or certificates for a like number of shares (or, with respect to
uncertificated shares, by delivery of duly executed instructions or in any other
manner permitted by applicable law).
(b) The Corporation shall have power to enter into and perform any
agreement with any number of stockholders of any one or more classes of stock of
the Corporation to restrict the transfer of shares of stock of the Corporation
of any one or more classes owned by such stockholders in any manner not
prohibited by the DGCL.
Section 4. Fixing Record Dates.
(a) 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, 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 record date
shall not be more than sixty (60) nor less than ten (10) days before the date of
such meeting. If no record date is fixed by the Board of Directors, the record
date for determining stockholders entitled to notice of or to vote at a meeting
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of stockholders shall be at the close of business on the day next preceding the
day on which notice is given, or if notice is waived, at the close of business
on the day next preceding the day on which the meeting is held. 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.
(b) In order that the Corporation may determine the stockholders
entitled to receive payment of any dividend or other distribution or allotment
of any rights or the stockholders 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, and which record date shall be not more than sixty (60)
days prior to such action. If no record date is fixed, the record date for
determining stockholders for any such purpose shall be at the close of business
on the day on which the Board of Directors adopts the resolution relating
thereto.
Section 5. Registered Stockholders. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends, and to vote as such owner, and shall not be
bound to recognize any equitable or other claim to or interest in such share or
shares on the part of any other person whether or not it shall have express or
other notice thereof, except as otherwise provided by the laws of Delaware.
ARTICLE VIII
DIVIDENDS
Section 1. Declaration of Dividends. Dividends upon the capital stock of
the Corporation, subject to the provisions of the Certificate of Incorporation,
if any, may be declared by the Board of Directors pursuant to law at any regular
or special meeting. Dividends may be paid in cash, in property, or in shares of
the capital stock, at the sole discretion of the Board of Directors.
Section 2. Dividend Reserve. Before payment of any dividend, there may be
set aside out of any funds of the Corporation available for dividends such sum
or sums as the Board of Directors from time to time, in their absolute
discretion, think proper and the Board of Directors may modify or abolish any
such reserve in the manner in which it was created.
ARTICLE IX
FISCAL YEAR
The fiscal year of the Corporation shall be fixed by resolution of the
Board of Directors.
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ARTICLE X
INDEMNIFICATION
The Corporation shall have power to indemnify its Directors, executive
officers, other officers, employees and other agents as set forth in the
Certificate of Incorporation and the DGCL.
ARTICLE XI
NOTICES
Section 1. Notice to Stockholders. Whenever, under any provisions of these
Bylaws, notice is required to be given to any stockholder, it shall be given in
writing, timely and duly deposited in the United States mail, postage prepaid,
and addressed to his last known post office address as shown by the stock record
of the corporation or its transfer agent.
Section 2. Notice to Directors. Any notice required to be given to any
Director may be given by the method stated in Section 1 of Article X, or by
facsimile, telex, telegram, commercial courier service, personal delivery,
telephone, voice message system or electronic transmission, except that such
notice other than one which is delivered personally shall be sent to such
address as such Director shall have filed in writing with the Secretary, or, in
the absence of such filing, to the last known post office address of such
Director. It shall not be necessary that the same method of giving notice be
employed in respect of all directors, but one permissible method may be employed
in respect of any one or more, and any other permissible method or methods may
be employed in respect of any other or others.
Section 3. Address Unknown. If no address of a stockholder or Director be
known, notice may be sent to the principal executive office of the Corporation
maintained pursuant to Article I, Section 2 hereof.
Section 4. Affidavit of Mailing. An affidavit of mailing, executed by a
duly authorized and competent employee of the Corporation or its transfer agent
appointed with respect to the class of stock affected, specifying the name and
address or the names and addresses of the stockholder or stockholders, or
Director or Directors, to whom any such notice or notices was or were given, and
the time and method of giving the same, shall be conclusive evidence of the
statements therein contained.
Section 5. Time Notices Deemed Given. All notices given by mail or
commercial courier service shall be deemed to have been given as at the time of
dispatch, all notices by personal delivery or telephone shall be deemed to have
been given as of receipt by the designee or a person accepting notice on behalf
of such Director, and all notices given by facsimile, telex, telegram, voice
message system or electronic transmission shall be deemed to have been given as
of the sending time recorded at the time of transmission.
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Section 6. Failure to Receive Notice. The period or limitation of time
within which any stockholder may exercise any option or right, or enjoy any
privilege or benefit, or be required to act, or within which any Director may
exercise any power or right, or enjoy any privilege, pursuant to any notice sent
him in the manner above provided, shall not be affected or extended in any
manner by the failure of such stockholder or such Director to receive such
notice.
Section 7. Notice to Person with Whom Communication Is Unlawful. Whenever
notice is required to be given, under any provision of law or of the Certificate
of Incorporation or these Bylaws, to any person with whom communication is
unlawful, the giving of such notice to such person shall not be required and
there shall be no duty to apply to any governmental authority or agency for a
license or permit to give such notice to such person. Any action or meeting
which shall be taken or held without notice to any such person with whom
communication is unlawful shall have the same force and effect as if such notice
had been duly given. In the event that the action taken by the Corporation is
such as to require the filing of a certificate under any provision of the DGCL,
the certificate shall state, if such is the fact and if notice is required, that
notice was given to all persons entitled to receive notice except such persons
with whom communication is unlawful.
Section 8. Notice to Person with Undeliverable Address. Whenever notice is
required to be given, under any provision of law or the Certificate of
Incorporation or these Bylaws, to any stockholder to whom (i) notice of two
consecutive annual meetings, and all notices of meetings or of the taking of
action by written consent without a meeting to such person during the period
between such two consecutive annual meetings, or (ii) all, and at least two,
payments (if sent by first class mail) of dividends or interest on securities
during a twelve- month period, have been mailed addressed to such person at his
address as shown on the records of the corporation and have been returned
undeliverable, the giving of such notice to such person shall not be required.
Any action or meeting which shall be taken or held without notice to such person
shall have the same force and effect as if such notice had been duly given. If
any such person shall deliver to the Corporation a written notice setting forth
his then current address, the requirement that notice be given to such person
shall be reinstated. In the event that the action taken by the Corporation is
such as to require the filing of a certificate under any provision of the DGCL,
the certificate need not state that notice was not given to persons to whom
notice was not required to be given pursuant to this paragraph.
ARTICLE XII
AMENDMENTS
These Bylaws may be altered, or amended or new Bylaws may be adopted in
the manner provided by Article V of the Certificate of Incorporation.
ARTICLE XIII
MISCELLANEOUS
When used in these Bylaws and when permitted by applicable law, the terms
"written" and "in writing" shall include any "electronic transmission," as
defined in Section 232(c) of the DGCL, including without limitation any
telegram, cablegram, facsimile transmission and communication by electronic
mail.
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