Exhibit 3.2
BY-LAWS
OF
AMERICAN TOWER CORPORATION
(a Delaware Corporation)
* As Amended Through February 26, 2003
AMERICAN TOWER CORPORATION
(a Delaware Corporation)
BY-LAWS
TABLE OF CONTENTS
Page
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ARTICLE I. OFFICES................................................................................. 1
SECTION 1. Registered Office....................................................................... 1
SECTION 2. Other Offices........................................................................... 1
ARTICLE II. SEAL.................................................................................... 1
ARTICLE III. MEETINGS OF STOCKHOLDERS................................................................ 1
SECTION 1. Place of Meeting........................................................................ 1
SECTION 2. Annual Meetings......................................................................... 1
SECTION 3. Special Meetings........................................................................ 1
SECTION 4. Notice.................................................................................. 2
SECTION 5. Quorum and Adjournments................................................................. 2
SECTION 6. Votes; Proxies.......................................................................... 3
SECTION 7. Organization............................................................................ 3
SECTION 8. Consent of Stockholders in Lieu of Meeting.............................................. 3
ARTICLE IV. DIRECTORS............................................................................... 4
SECTION 1. Number.................................................................................. 4
SECTION 2. Term of Office.......................................................................... 5
SECTION 3. Vacancies............................................................................... 5
SECTION 4. Removal by Stockholders................................................................. 5
SECTION 5. Meetings................................................................................ 5
SECTION 6. Votes................................................................................... 6
SECTION 7. Quorum and Adjournment.................................................................. 6
SECTION 8. Compensation............................................................................ 6
SECTION 9. Action By Consent of Directors.......................................................... 6
ARTICLE V. COMMITTEES OF DIRECTORS................................................................. 6
SECTION 1. Executive Committee..................................................................... 6
SECTION 2. Audit Committee......................................................................... 7
SECTION 3. Other Committees........................................................................ 8
SECTION 4. Term of Office.......................................................................... 9
* As Amended Through February 26, 2003
-i-
ARTICLE VI. OFFICERS................................................................................ 9
SECTION 1. Officers................................................................................ 9
SECTION 2. Vacancies............................................................................... 9
SECTION 3. Chairman of the Board................................................................... 9
SECTION 4. President............................................................................... 9
SECTION 5. Executive Vice Presidents and Vice Presidents........................................... 9
SECTION 6. Secretary............................................................................... 9
SECTION 7. Assistant Secretaries................................................................... 10
SECTION 8. Treasurer............................................................................... 10
SECTION 9. Assistant Treasurers.................................................................... 10
SECTION 10. Controller.............................................................................. 10
SECTION 11. Assistant Controller.................................................................... 10
SECTION 12. Subordinate Officers.................................................................... 11
SECTION 13. Compensation............................................................................ 11
SECTION 14. Removal................................................................................. 11
SECTION 15. Bonds................................................................................... 11
ARTICLE VII. CERTIFICATES OF STOCK................................................................... 11
SECTION 1. Form and Execution of Certificates...................................................... 11
SECTION 2. Transfer of Shares...................................................................... 12
SECTION 3. Closing of Transfer Books............................................................... 12
SECTION 4. Fixing Date for Determination of Stockholders of Record................................. 12
SECTION 5. Lost or Destroyed Certificates.......................................................... 13
SECTION 6. Uncertificated Shares................................................................... 14
ARTICLE VIII. EXECUTION OF DOCUMENTS.................................................................. 14
SECTION 1. Execution of Checks, Notes, etc......................................................... 14
SECTION 2. Execution of Contracts, Assignments, etc................................................ 14
SECTION 3. Execution of Proxies.................................................................... 14
ARTICLE IX. INSPECTION OF BOOKS..................................................................... 14
ARTICLE X. FISCAL YEAR............................................................................. 15
ARTICLE XI. AMENDMENTS.............................................................................. 15
ARTICLE XII. INDEMNIFICATION......................................................................... 15
SECTION 1. Indemnification......................................................................... 15
SECTION 2. Authorization........................................................................... 16
SECTION 3. Expense Advance......................................................................... 16
SECTION 4. Nonexclusivity.......................................................................... 16
SECTION 5. Insurance............................................................................... 17
SECTION 6. "The Corporation"....................................................................... 17
SECTION 7. Other Indemnification................................................................... 17
* As Amended Through February 26, 2003
-ii-
SECTION 8. Other Definitions....................................................................... 17
SECTION 9. Continuation of Indemnification......................................................... 17
SECTION 10. Amendment or Repeal..................................................................... 18
* As Amended Through February 26, 2003
-iii-
AMERICAN TOWER CORPORATION
(a Delaware Corporation)
BY-LAWS
ARTICLE I
OFFICES
SECTION 1. Registered Office. The registered office of the Corporation
shall be located in Wilmington, County of New Castle, State of Delaware, and the
name of the resident agent in charge thereof shall be Corporation Service
Company.
SECTION 2. Other Offices. The Corporation may also have offices at such
other places, within or without the State of Delaware, as the Board of Directors
may from time to time appoint or the business of the Corporation may require.
ARTICLE II
SEAL
The seal of the Corporation shall, subject to alteration by the Board of
Directors, consist of a flat-faced circular die with the word "Delaware",
together with the name of the Corporation and the year of incorporation, cut or
engraved thereon.
ARTICLE III
MEETINGS OF STOCKHOLDERS
SECTION 1. Place of Meeting. Meetings of the stockholders shall be held
either within or without the State of Delaware at such place as the Board of
Directors may fix from time to time.
SECTION 2. Annual Meetings. The annual meeting of stockholders shall be
held for the election of directors on such date and at such time as the Board of
Directors may fix from time to time. Any other proper business may be transacted
at the annual meeting.
SECTION 3. Special Meetings. Special meetings of the stockholders for
any purpose or purposes may be called by the Chairman of the Board of Directors,
if there be one, the President or by the directors (either by written instrument
signed by a majority or by resolution adopted by a vote of the majority), and
special meetings shall be called by the President or the Secretary
* As Amended Through February 26, 2003
-1-
whenever stockholders owning a majority of the capital stock issued, outstanding
and entitled to vote so request in writing. Such request of stockholders shall
state the purpose or purposes of the proposed meeting.
SECTION 4. Notice. Written or printed notice of every meeting of
stockholders, annual or special, stating the hour, date and place thereof, and
the purpose or purposes in general terms for which the meeting is called shall,
not less than ten (10) days, or such longer period as shall be provided by law,
the Certificate of Incorporation, these By-Laws, or otherwise, and not more than
sixty (60) days before such meeting, be served upon or mailed to each
stockholder entitled to vote thereat, at the address of such stockholder as it
appears upon the stock records of the Corporation or, if such stockholder shall
have filed with the Secretary of the Corporation a written request that notices
be mailed to some other address, then to the address designated in such request.
Notice of the hour, date, place and purpose of any meeting of
stockholders may be dispensed with if every stockholder entitled to vote thereat
shall attend either in person or by proxy and shall not, at the beginning of the
meeting, object to the holding of such meeting because the meeting has not been
lawfully called or convened, or if every absent stockholder entitled to such
notice shall in writing, filed with the records of the meeting, either before or
after the holding thereof, waive such notice.
SECTION 5. Quorum and Adjournments. Except as otherwise provided by law
or by the Certificate of Incorporation, the presence in person or by proxy at
any meeting of stockholders of the holders of a majority of the shares of the
capital stock of the Corporation issued and outstanding and entitled to vote
thereat, shall be requisite and shall constitute a quorum. So long as the
Certificate of Incorporation provides for more or less than one vote for any
share, or any matter, every reference in these By-Laws to a majority or other
proportion of shares shall refer to such majority or other proportion of the
votes of such shares. If two or more classes of stock are entitled to vote as
separate classes upon any question, then, in the case of each such class, a
quorum for the consideration of such question shall, except as otherwise
provided by law or by the Certificate of Incorporation, consist of a majority in
interest of all stock of that class issued, outstanding and entitled to vote. If
a majority of the shares of capital stock of the Corporation issued and
outstanding and entitled to vote thereat or, where a larger quorum is required,
such quorum, shall not be represented at any meeting of the stockholders
regularly called, the holders of a majority of the shares present or represented
by proxy and entitled to vote thereat shall have power to adjourn the meeting to
another time, or to another time and place, without notice other than
announcement of adjournment at the meeting, and there may be successive
adjournments for like cause and in like manner until the requisite amount of
shares entitled to vote at such meeting shall be represented; provided, however,
that if the adjournment is for more than thirty (30) days, notice of the hour,
date and place of the adjourned meeting shall be given to each stockholder
entitled to vote thereat. Subject to the requirements of law and the Certificate
of Incorporation, on any issue on which two or more classes of stock are
entitled to vote separately, no adjournment shall be taken with respect to any
class for which a quorum is present unless the Chairman of the meeting otherwise
directs. At any meeting held to consider matters which were subject to
adjournment for want of a quorum at which the requisite amount of shares
entitled to vote thereat shall be represented, any business may be transacted
which might have been transacted at the meeting as originally noticed.
* As Amended Through February 26, 2003
-2-
SECTION 6. Votes; Proxies. Except as otherwise provided in the
Certificate of Incorporation, at each meeting of stockholders, every stockholder
of record at the closing of the transfer books, if closed, or on the date set by
the Board of Directors for the determination of stockholders entitled to vote at
such meeting, shall have one vote for each share of stock entitled to vote which
is registered in such stockholder's name on the books of the Corporation, and,
in the election of directors, may vote cumulatively to the extent, if any, and
in the manner authorized in the Certificate of Incorporation.
Each stockholder of record entitled to vote at a meeting of stockholders
may vote in person or may authorize another person or persons to vote for such
stockholder by a proxy executed or transmitted in a manner permitted by the
General Corporation Law of Delaware by the stockholder or such stockholder's
authorized agent and delivered (including by electronic transmission) to the
Secretary of the Corporation. No such proxy shall be voted upon after three
years from the date of its execution, unless the proxy expressly provides for a
longer period. A duly executed proxy shall be irrevocable if it states that it
is irrevocable and if, and only as long as, it is coupled with an interest
sufficient in law to support an irrevocable power. A proxy may be made
irrevocable regardless of whether the interest with which it is coupled is an
interest in the stock itself or any interest in the Corporation generally. A
stockholder may revoke any proxy which is not irrevocable by attending the
meeting and voting in person or by filing with the Secretary of the Corporation
an instrument in writing or as otherwise permitted by law revoking the proxy or
another duly executed proxy bearing a later date.
Voting at meetings of stockholders need not be by written ballot and,
except as otherwise provided by law, need not be conducted by an inspector of
election unless so determined by the Chairman of the meeting or by the holders
of shares of stock having a majority of the votes which could be cast by the
holders of all outstanding shares of stock entitled to vote thereon which are
present in person or represented by proxy at such meeting. If it is required or
determined that an inspector of election be appointed, the Chairman shall
appoint one inspector of election, who shall first take and subscribe an oath or
affirmation faithfully to execute the duties of an inspector at such meeting
with strict impartiality and according to the best of his ability. The
inspectors so appointed shall take charge of the polls and, after the balloting,
shall make a certificate of the result of the vote taken. No director or
candidate for the office of director shall be appointed as such inspector.
At any meeting at which a quorum is present, a plurality of the votes
properly cast for election to fill any vacancy on the Board of Directors shall
be sufficient to elect a candidate to fill such vacancy, and a majority of the
votes properly cast upon any other question shall decide the question, except in
any case where a larger vote is required by law, the Certificate of
Incorporation, these By-Laws, or otherwise.
SECTION 7. Organization. The Chairman of the Board, if there be one, or
in his or her absence the Vice Chairman, or in the absence of a Vice Chairman,
the President, or in the absence of the President, a Vice President, shall call
meetings of the stockholders to order and shall act as chairman thereof. The
Secretary of the Corporation, if present, shall act as secretary of all meetings
of stockholders, and, in his or her absence, the presiding officer may appoint a
secretary.
* As Amended Through February 26, 2003
-3-
SECTION 8. Consent of Stockholders in Lieu of Meeting. Unless otherwise
restricted by the Certificate of Incorporation, any action required or permitted
by the Delaware General Corporation Law to be taken at any annual or special
meeting of the stockholders of the Corporation, may be taken without a meeting,
without prior notice and without a vote, if a consent or consents in writing,
setting forth the action so taken, shall be signed by the holders of outstanding
stock having not less than the minimum number of votes that would be necessary
to authorize or take such action at a meeting at which all shares entitled to
vote thereon were present and voted and shall be delivered to the Corporation by
delivery to its registered office in Delaware, its principal place of business,
or an officer or agent of the Corporation having custody of the book in which
proceedings of meetings of stockholders are recorded. Delivery made to the
Corporation's registered office shall be by hand or by certified or registered
mail, return receipt requested.
Every written consent shall bear the date of signature of each
stockholder who signs the consent and no written consent shall be effective to
take the corporate action referred to therein unless, within sixty (60) days of
the earliest dated consent delivered in the manner required by this section to
the Corporation, written consents signed by a sufficient number of stockholders
to take action are delivered to the corporation by delivery to its registered
office in Delaware, its principal place of business, or an officer or agent of
the Corporation having custody of the book in which proceedings of meetings of
stockholders are recorded. Delivery made to the Corporation's registered office
shall be by hand or by certified or registered mail, return receipt requested.
Prompt notice of the taking of the corporate action without a meeting by
less than unanimous written consent shall be given to those stockholders who
have not consented in writing. In the event that the action which is consented
to is such as would have required the filing of a certificate under any section
of the Delaware General Corporation Law other than Section 228 thereof, if such
action had been voted on by stockholders at a meeting thereof, the certificate
filed under such other section shall state, in lieu of any statement required by
such section concerning any vote of stockholders, that written consent has been
given in accordance with Section 228 of the Delaware General Corporation Law,
and that written notice has been given as provided in such Section 228.
ARTICLE IV
DIRECTORS
SECTION 1. Number. The business and affairs of the Corporation shall be
conducted and managed by a Board of Directors consisting of not less than one
director, none of whom needs to be a stockholder. The number of directors for
each year shall be fixed at each annual meeting of stockholders, but if the
number is not so fixed, the number shall remain as it stood immediately prior to
such meeting.
At each annual meeting of stockholders, the stockholders shall elect
directors. Each director so elected shall hold office, subject to the provisions
of law, the Certificate of Incorporation, these By-Laws, or otherwise, until the
next annual meeting of stockholders or until his or her successor is elected and
qualified.
* As Amended Through February 26, 2003
-4-
At any time during any year, except as otherwise provided by law, the
Certificate of Incorporation, these By-Laws, or otherwise, the number of
directors may be increased or reduced, in each case by vote of a majority of the
stock issued and outstanding and present in person or represented by proxy and
entitled to vote for the election of directors or a majority of the directors in
office at the time of such increase or decrease, regardless of whether such
majority constitutes a quorum.
SECTION 2. Term of Office. Each director shall hold office until the
next annual meeting of stockholders and until his or her successor is duly
elected and qualified or until his or her earlier death or resignation, subject
to the right of the stockholders at any time to remove any director or directors
as provided in Section 4 of this Article.
SECTION 3. Vacancies. If any vacancy shall occur among the directors,
or if the number of directors shall at any time be increased, the directors then
in office, although less than a quorum, by a majority vote may fill the
vacancies or newly- created directorships, or any such vacancies or
newly-created directorships may be filled by the stockholders at any meeting.
SECTION 4. Removal by Stockholders. Except as otherwise provided by
law, the Certificate of Incorporation or otherwise, the holders of record of the
capital stock of the Corporation entitled to vote for the election of directors
may, by a majority vote, remove any director or directors, with or without
cause, and, in their discretion, elect a new director or directors in place
thereof.
SECTION 5. Meetings. Meetings of the Board of Directors shall be held
at such place, within or without the State of Delaware, as may from time to time
be fixed by resolution of the Board of Directors or by the Chairman of the
Board, if there be one, or by the President, and as may be specified in the
notice or waiver of notice of any meeting. Meetings may be held at any time upon
the call of the Chairman of the Board, if there be one, or the President or any
two (2) of the directors in office by oral, telegraphic, telex, telecopy or
other form of electronic transmission, or written notice, duly served or sent or
mailed to each director not less than twenty-four (24) hours before such
meeting, except that, if mailed, not less than seventy two (72) hours before
such meeting.
Meetings may be held at any time and place without notice if all the
directors are present and do not object to the holding of such meeting for lack
of proper notice or if those not present shall, in writing or by telegram,
telex, telecopy or other form of electronic transmission, waive notice thereof.
A regular meeting of the Board may be held without notice immediately following
the annual meeting of stockholders at the place where such meeting is held.
Regular meetings of the Board may also be held without notice at such time and
place as shall from time to time be determined by resolution of the Board.
Except as otherwise provided by law, the Certificate of Incorporation or
otherwise, neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the Board of Directors or any committee thereof
need be specified in any written waiver of notice.
Members of the Board of Directors or any committee thereof may
participate in a meeting of such Board or committee by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear
* As Amended Through February 26, 2003
-5-
each other and participation in a meeting pursuant to the foregoing provisions
shall constitute presence in person at the meeting.
SECTION 6. Votes. Except as otherwise provided by law, the Certificate
of Incorporation or otherwise, the vote of the majority of the directors present
at a meeting at which a quorum is present shall be the act of the Board of
Directors.
SECTION 7. Quorum and Adjournment. Except as otherwise provided by law,
the Certificate of Incorporation or otherwise, a majority of the directors shall
constitute a quorum for the transaction of business. If at any meeting of the
Board there shall be less than a quorum present, a majority of those present may
adjourn the meeting from time to time without notice other than announcement of
the adjournment at the meeting, and at such adjourned meeting at which a quorum
is present any business may be transacted which might have been transacted at
the meeting as originally noticed.
SECTION 8. Compensation. Directors shall receive compensation for their
services, as such, and for service on any Committee of the Board of Directors,
as fixed by resolution of the Board of Directors and for expenses of attendance
at each regular or special meeting of the Board or any Committee thereof.
Nothing in this Section shall be construed to preclude a director from serving
the Corporation in any other capacity and receiving compensation therefor.
SECTION 9. Action By Consent of Directors. 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 or
committee, as the case may be, consent thereto in writing (which may be in
counterparts) or by electronic transmission, and the writing, writings, or
electronic transmission or transmissions are filed with the minutes of
proceedings of the Board or committee. Such consent shall be treated as a vote
adopted at a meeting for all purposes.
ARTICLE V
COMMITTEES OF DIRECTORS
SECTION 1. Executive Committee. The Board of Directors may, by
resolution passed by a majority of the whole Board, appoint an Executive
Committee of one (1) or more members, to serve during the pleasure of the Board,
to consist of such directors as the Board may from time to time designate. The
Board of Directors shall designate the Chairman of the Executive Committee.
(a) Procedure. The Executive Committee shall, by a vote of a
majority of its members, fix its own times and places of
meeting, determine the number of its members constituting a
quorum for the transaction of business, and prescribe its own
rules of procedure, no change in which shall be made save by a
majority vote of its members.
(b) Responsibilities. During the intervals between the meetings of
the Board of Directors, except as otherwise provided by the
Board of Directors in establishing such Committee or otherwise,
the Executive Committee shall possess and may exercise all the
powers of the Board in the management and direction of the
* As Amended Through February 26, 2003
-6-
business and affairs of the Corporation; provided, however, that
the Executive Committee shall not, except to the extent the
Certificate of Incorporation or the resolution providing for the
issuance of shares of stock adopted by the Board of Directors as
provided in Section 151(a) of the Delaware General Business
Corporation Law, have the power:
(i) to amend or authorize the amendment of the
Certificate of Incorporation or these By-Laws;
(ii) to authorize the issuance of stock in excess of one
million (1,000,000) shares in any single transaction
or group of related transactions;
(iii) to authorize the payment of any dividend;
(iv) to adopt an agreement of merger or consolidation
pursuant to which the Corporation will merge or
consolidate or to recommend to the stockholders the
sale, lease or exchange of all or substantially all
the property and business of the Corporation;
(v) to recommend to the stockholders a dissolution, or a
revocation of a dissolution, of the Corporation; or
(vi) to adopt a certificate of ownership and merger
pursuant to Section 253 of the Delaware Business
Corporation Law; and further
(c) Reports. The Executive Committee shall keep regular minutes of
its proceedings, and all action by the Executive Committee shall
be reported promptly to the Board of Directors. Such action
shall be subject to review, amendment and repeal by the Board,
provided that no rights of third parties shall be adversely
affected by such review, amendment or repeal.
(d) Appointment of Additional Members. In the absence or
disqualification of any member of the Executive Committee, the
member or members thereof present at any meeting and not
disqualified from voting, whether or not constituting a quorum,
may unanimously appoint another member of the Board of Directors
to act at the meeting in place of any such absent or
disqualified member.
SECTION 2. Audit Committee. The Board of Directors may, by resolution
passed by a majority of the whole Board, appoint an Audit Committee of one (1)
or more members who shall not be officers or employees of the Corporation to
serve during the pleasure of the Board. The Board of Directors shall designate
the Chairman of the Audit Committee.
(a) Procedure. The Audit Committee, by a vote of a majority of its
members, shall fix its own times and places of meeting, shall
determine the number of its members constituting a quorum for
the transaction of business, and shall prescribe
* As Amended Through February 26, 2003
-7-
its own rules of procedure, no change in which shall be made
save by a majority vote of its members.
(b) Responsibilities. The Audit Committee shall review the annual
financial statements of the Corporation prior to their
submission to the Board of Directors, shall consult with the
Corporation's independent auditors, and may examine and consider
such other matters in relation to the internal and external
audit of the Corporation's accounts and in relation to the
financial affairs of the Corporation and its accounts, including
the selection and retention of independent auditors, as the
Audit Committee may, in its discretion, determine to be
desirable.
(c) Reports. The Audit Committee shall keep regular minutes of its
proceedings, and all action by the Audit Committee shall, from
time to time, be reported to the Board of Directors as it shall
direct. Such action shall be subject to review, amendment and
repeal by the Board, provided that no rights of third parties
shall be adversely affected by such review, amendment or repeal.
(d) Appointment of Additional Members. In the absence or
disqualification of any member of the Audit Committee, the
member or members thereof present at any meeting and not
disqualified from voting, whether or not constituting a quorum,
may unanimously appoint another member of the Board of Directors
to act at the meeting in place of any such absent or
disqualified member.
SECTION 3. Other Committees. The Board of Directors may, by resolution
passed by a majority of the whole Board, at any time appoint one or more other
committees from and outside of its own number. Every such committee must include
at least one member of the Board of Directors. The Board may from time to time
designate or alter, within the limits permitted by law, the Certificate of
Incorporation and this Article, if applicable, the duties, powers and number of
members of such other committees or change their membership, and may at any time
abolish such other committees or any of them.
(a) Procedure. Each committee, appointed pursuant to this Section,
shall, by a vote of a majority of its members, fix its own times
and places of meeting, determine the number of its members
constituting a quorum for the transaction of business, and
prescribe its own rules of procedure, no change in which shall
be made save by a majority vote of its members.
(b) Responsibilities. Each committee, appointed pursuant to this
Section, shall exercise the powers assigned to it by the Board
of Directors in its discretion.
(c) Reports. Each committee appointed pursuant to this Section shall
keep regular minutes of proceedings, and all action by each such
committee shall, from time to time, be reported to the Board of
Directors as it shall direct. Such action shall be subject to
review, amendment and repeal by the Board, provided that no
rights of third parties shall be adversely affected by such
review, amendment or repeal.
* As Amended Through February 26, 2003
-8-
(d) Appointment of Additional Members. In the absence or
disqualification of any member of each committee, appointed
pursuant to this Section, the member or members thereof present
at any meeting and not disqualified from voting, whether or not
constituting a quorum, may unanimously appoint another member of
the Board of Directors (or, to the extent permitted, another
person) to act at the meeting in place of any such absent or
disqualified member.
SECTION 4. Term of Office. Each member of a committee shall hold office
until the first meeting of the Board of Directors following the annual meeting
of stockholders (or until such other time as the Board of Directors may
determine, either in the vote establishing the committee or at the election of
such member or otherwise) and until his or her successor is elected and
qualified, or until he or she sooner dies, resigns, is removed, is replaced by
change of membership or becomes disqualified by ceasing to be a director (where
membership on the Board is required), or until the committee is sooner abolished
by the Board of Directors.
ARTICLE VI
OFFICERS
SECTION 1. Officers. The Board of Directors shall elect a President, a
Secretary and a Treasurer, and, in their discretion, may elect a Chairman of the
Board, a Vice Chairman of the Board, a Controller, and one or more Executive
Vice Presidents, Vice Presidents, Assistant Secretaries, Assistant Treasurers
and Assistant Controllers as deemed necessary or appropriate. Such officers
shall be elected annually by the Board of Directors at its first meeting
following the annual meeting of stockholders (or at such other meeting as the
Board of Directors determines), and each shall hold office for the term provided
by the vote of the Board, except that each will be subject to removal from
office in the discretion of the Board as provided herein. The powers and duties
of more than one office may be exercised and performed by the same person.
SECTION 2. Vacancies. Any vacancy in any office may be filled for the
unexpired portion of the term by the Board of Directors, at any
regular or special meeting.
SECTION 3. Chairman of the Board. The Chairman of the Board of
Directors, if elected, shall be a member of the Board of Directors and shall
preside at its meetings. The Chairman, if other than the President, shall advise
and counsel with the President, and shall perform such duties as from time to
time may be assigned to him or her by the Board of Directors.
SECTION 4. President. The President shall be the chief executive
officer of the Corporation. Subject to the directions of the Board of Directors,
the President shall have and exercise direct charge of and general supervision
over the business and affairs of the Corporation and shall perform all duties
incident to the office of the chief executive officer of a corporation and such
other duties as from time to time may be assigned to him or her by the Board of
Directors. The President may but need not be a member of the Board of Directors.
* As Amended Through February 26, 2003
-9-
SECTION 5. Executive Vice Presidents and Vice Presidents. Each
Executive Vice President and Vice President shall have and exercise such powers
and shall perform such duties as from time to time may be assigned to him or to
her by the Board of Directors or the President.
SECTION 6. Secretary. The Secretary shall keep the minutes of all
meetings of the stockholders and of the Board of Directors in books provided for
the purpose; shall see that all notices are duly given in accordance with the
provisions of law and these By-Laws; the Secretary shall be custodian of the
records and of the corporate seal or seals of the Corporation; shall see that
the corporate seal is affixed to all documents the execution of which, on behalf
of the Corporation under its seal, is duly authorized, and, when the seal is so
affixed, he or she may attest the same; the Secretary may sign, with the
President, an Executive Vice President or a Vice President, certificates of
stock of the Corporation; and, in general, the Secretary shall perform all
duties incident to the office of secretary of a corporation, and such other
duties as from time to time may be assigned to him or her by the Board of
Directors.
SECTION 7. Assistant Secretaries. The Assistant Secretaries in order of
their seniority shall, in the absence or disability of the Secretary, perform
the duties and exercise the powers of the Secretary and shall perform such other
duties as the Board of Directors shall prescribe or as from time to time may be
assigned by the Secretary.
SECTION 8. Treasurer. The Treasurer shall have charge of and be
responsible for all funds, securities, receipts and disbursements of the
Corporation, and shall deposit, or cause to be deposited, in the name of the
Corporation, all monies or other valuable effects in such banks, trust companies
or other depositaries as shall, from time to time, be selected by the Board of
Directors; may endorse for collection on behalf of the Corporation checks, notes
and other obligations; may sign receipts and vouchers for payments made to the
Corporation; may sign checks of the Corporation, singly or jointly with another
person as the Board of Directors may authorize, and pay out and dispose of the
proceeds under the direction of the Board; the Treasurer shall render to the
President and to the Board of Directors, whenever requested, an account of the
financial condition of the Corporation; the Treasurer may sign, with the
President, or an Executive Vice President or a Vice President, certificates of
stock of the Corporation; and in general, shall perform all the duties incident
to the office of treasurer of a corporation, and such other duties as from time
to time may be assigned by the Board of Directors. Unless the Board of Directors
shall otherwise determine, the Treasurer shall be the chief financial officer of
the Corporation.
SECTION 9. Assistant Treasurers. The Assistant Treasurers in order of
their seniority shall, in the absence or disability of the Treasurer, perform
the duties and exercise the powers of the Treasurer and shall perform such other
duties as the Board of Directors shall prescribe or as from time to time may be
assigned by the Treasurer.
SECTION 10. Controller. The Controller, if elected, shall be the chief
accounting officer of the Corporation and shall perform all duties incident to
the office of a controller of a corporation, and, in the absence of or
disability of the Treasurer or any Assistant Treasurer, perform the duties and
exercise the powers of the Treasurer and shall perform such other duties
* As Amended Through February 26, 2003
-10-
as the Board of Directors shall prescribe or as from time to time may be
assigned by the President or the Treasurer.
SECTION 11. Assistant Controllers. The Assistant Controllers in order of
their seniority shall, in the absence or disability of the Controller, perform
the duties and exercise the powers of the Controller and shall perform such
other duties as the Board of Directors shall prescribe or as from time to time
may be assigned by the Controller.
SECTION 12. Subordinate Officers. The Board of Directors may appoint
such subordinate officers as it may deem desirable. Each such officer shall hold
office for such period, have such authority and perform such duties as the Board
of Directors may prescribe. The Board of Directors may, from time to time,
authorize any officer to appoint and remove subordinate officers and to
prescribe the powers and duties thereof.
SECTION 13. Compensation. The Board of Directors shall fix the
compensation of all officers of the Corporation. It may authorize any officer,
upon whom the power of appointing subordinate officers may have been conferred,
to fix the compensation of such subordinate officers.
SECTION 14. Removal. Any officer of the Corporation may be removed, with
or without cause, by action of the Board of Directors.
SECTION 15. Bonds. The Board of Directors may require any officer of the
Corporation to give a bond to the Corporation, conditional upon the faithful
performance of his or her duties, with one or more sureties and in such amount
as may be satisfactory to the Board of Directors.
ARTICLE VII
CERTIFICATES OF STOCK
SECTION 1. Form and Execution of Certificates. The interest of each
stockholder of the Corporation shall be evidenced by a certificate or
certificates for shares of stock in such form as the Board of Directors may from
time to time prescribe. The certificates of stock of each class shall be
consecutively numbered and signed by the Chairman or Vice Chairman of the Board,
if any, the President, an Executive Vice President or a Vice President and by
the Secretary, an Assistant Secretary, the Treasurer or an Assistant Treasurer
of the Corporation, and may be countersigned and registered in such manner as
the Board of Directors may by resolution prescribe, and shall bear the corporate
seal or a printed or engraved facsimile thereof. Where any such certificate is
signed by a transfer agent or transfer clerk acting on behalf of the
Corporation, the signatures of any such Chairman, Vice Chairman, President,
Executive Vice President, Vice President, Treasurer, Assistant Treasurer,
Secretary or Assistant Secretary may be facsimiles, engraved or printed. In case
any officer or officers, who shall have signed, or whose facsimile signature or
signatures shall have been used on, any such certificate or certificates, shall
cease to be such officer or officers, whether because of death, resignation or
otherwise, before such certificate or certificates shall have been delivered by
the Corporation, such certificate or certificates may nevertheless be issued and
delivered by the Corporation as though the person or
* As Amended Through February 26, 2003
-11-
persons who signed such certificate or certificates or whose facsimile signature
or signatures shall have been used thereon had not ceased to be such officer or
officers.
In case the corporate seal which has been affixed to, impressed on, or
reproduced in any such certificate or certificates shall cease to be the seal of
the Corporation before such certificate or certificates have been delivered by
the Corporation, such certificate or certificates may nevertheless be issued and
delivered by the Corporation as though the seal affixed thereto, impressed
thereon or reproduced therein had not ceased to be the seal of the Corporation.
Every certificate for shares of stock which are subject to any
restriction on transfer pursuant to law, the Certificate of Incorporation, these
By-Laws, or any agreement to which the Corporation is a party, shall have the
restriction noted conspicuously on the certificate, and shall also set forth, on
the face or back, either the full text of the restriction or a statement of the
existence of such restriction and (except if such restriction is imposed by law)
a statement that the Corporation will furnish a copy thereof to the holder of
such certificate upon written request and without charge.
Every certificate issued when the Corporation is authorized to issue
more than one class or series of stock shall set forth on its face or back
either the full text of the preferences, voting powers, qualifications, and
special and relative rights of the shares of each class and series authorized to
be issued, or a statement of the existence of such preferences, powers,
qualifications and rights, and a statement that the Corporation will furnish a
copy thereof to the holder of such certificate upon written request and without
charge.
SECTION 2. Transfer of Shares. The shares of the stock of the
Corporation shall be transferred on the books of the Corporation by the holder
thereof in person or by his or her attorney lawfully constituted, upon surrender
for cancellation of certificates for the same number of shares, with an
assignment and power of transfer endorsed thereon or attached thereto, duly
executed, with such proof or guaranty of the authenticity of the signature as
the Corporation or its agents may reasonably require. The Corporation shall be
entitled to treat the holder of record of any share or shares of stock as the
holder in fact thereof and accordingly 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,
save as expressly provided by law or by the Certificate of Incorporation. It
shall be the duty of each stockholder to notify the Corporation of his or her
post office address.
SECTION 3. Closing of Transfer Books. The stock transfer books of the
Corporation may, if deemed appropriate by the Board of Directors, be closed for
such length of time not exceeding fifty (50) days as the Board may determine,
preceding the date of any meeting of stockholders or the date for the payment of
any dividend or the date for the allotment of rights or the date when any
issuance, change, conversion or exchange of capital stock shall go into effect,
during which time no transfer of stock on the books of the Corporation may be
made.
SECTION 4. Fixing Date for Determination of Stockholders of Record. In
order that the Corporation may determine the stockholders entitled to notice of
or to vote at any meeting of stockholders or any adjournment thereof, or to
express consent to corporate action in writing without a meeting, or entitled to
receive payment of any dividend or other distribution or
* As Amended Through February 26, 2003
-12-
allotment of any rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock or for the purpose of any other lawful
action, the Board of Directors may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date is adopted
by the Board of directors and which record date: (a) in the case of
determination of stockholders entitled to vote at any meeting of stockholders or
adjournment thereof, shall, unless otherwise required by law, the Certificate of
Incorporation or otherwise, not be more than sixty (60) nor less than ten (10)
days before the date of such meeting; (b) in the case of determination of
stockholders entitled to express consent to corporate action in writing without
a meeting, shall, unless otherwise required by law, the Certificate of
Incorporation or otherwise, not be more than ten (10) days from the date upon
which the resolution fixing the record date is adopted by the Board of
Directors; and (c) in the case of any other action, shall not be more than sixty
(60) days prior to such other action. If no record date is fixed: (a) the record
date for determining stockholders entitled to notice of or to vote at a meeting
of stockholders shall be at the close of business on the day next preceding the
day on which notice is given, or, if notice is waived, at the close of business
on the day next preceding the day on which the meeting is held; (b) the record
date for determining stockholders entitled to express consent to corporate
action in writing without a meeting when no prior action of the Board of
Directors is required by law, shall be the first date on which a signed written
consent setting forth the action taken or proposed to be taken is delivered to
the Corporation in accordance with applicable law, or, if prior action by the
Board of Directors is required by law, shall be at the close of business on the
day on which the Board of Directors adopts the resolution taking such prior
action; and (c) the record date for determining stockholders for any other
purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned meeting.
SECTION 5. Lost or Destroyed Certificates. In case of the loss or
destruction of any certificate of stock, a new certificate may be issued under
the following conditions:
(a) The owner of said certificate shall file with the Secretary or
any Assistant Secretary of the Corporation an affidavit giving
the facts in relation to the ownership, and in relation to the
loss or destruction of said certificate, stating its number and
the number of shares represented thereby; such affidavit shall
be in such form and contain such statements as shall satisfy the
President, any Executive Vice President, Vice President, the
Secretary, any Assistant Secretary, the Treasurer or any
Assistant Treasurer, that said certificate has been accidentally
destroyed or lost, and that a new certificate ought to be issued
in lieu thereof. Upon being so satisfied, any such officer may
require such owner to furnish the Corporation a bond in such
penal sum and in such form as he or she may deem advisable, and
with a surety or sureties approved by him or her, to indemnify
and save harmless the Corporation from any claim, loss, damage
or liability which may be occasioned by the issuance of a new
certificate in lieu thereof. Upon such bond being so filed, if
so required, a new certificate for the same number of shares
shall be issued to the owner of the certificate so lost or
destroyed; and the transfer agent and registrar, if any, of
stock shall countersign and register such new certificate upon
receipt of a written order signed by any such officer, and
* As Amended Through February 26, 2003
-13-
thereupon the Corporation will save harmless said transfer agent
and registrar in the premises. In case of the surrender of the
original certificate, in lieu of which a new certificate has
been issued, or the surrender of such new certificate, for
cancellation, the bond of indemnity given as a condition of the
issue of such new certificate may be surrendered; or
(b) The Board of Directors of the Corporation may by resolution
authorize and direct any transfer agent or registrar of stock of
the Corporation to issue and register respectively from time to
time without further action or approval by or on behalf of the
Corporation new certificates of stock to replace certificates
reported lost, stolen or destroyed upon receipt of an affidavit
of loss and bond of indemnity in form and amount and with surety
satisfactory to such transfer agent or registrar in each
instance or upon such terms and conditions as the Board of
Directors may determine.
SECTION 6. Uncertificated Shares. The Board of Directors of the
Corporation may by resolution provide that one or more of any or all classes or
series of the stock of the Corporation shall be uncertificated shares, subject
to the provisions of Section 158 of the Delaware General Corporation Law.
ARTICLE VIII
EXECUTION OF DOCUMENTS
SECTION 1. Execution of Checks, Notes, etc. All checks and drafts on
the Corporation's bank accounts and all bills of exchange and promissory notes,
and all acceptances, obligations and other instruments for the payment of money,
shall be signed by such officer or officers, or agent or agents, as shall be
thereunto authorized from time to time by the Board of Directors, which may in
its discretion authorize any such signatures to be facsimile.
SECTION 2. Execution of Contracts, Assignments, etc. Unless the Board
of Directors shall have otherwise provided generally or in a specific instance,
all contracts, agreements, endorsements, assignments, transfers, stock powers,
or other instruments shall be signed by the President, any Executive Vice
President, any Vice President, the Secretary, any Assistant Secretary, the
Treasurer or any Assistant Treasurer. The Board of Directors may, however, in
its discretion, require any or all such instruments to be signed by any two or
more of such officers, or may permit any or all of such instruments to be signed
by such other officer or officers, agent or agents, as it shall be thereunto
authorize from time to time.
SECTION 3. Execution of Proxies. The President, any Executive Vice
President or any Vice President, and the Secretary, the Treasurer, any Assistant
Secretary or any Assistant Treasurer, or any other officer designated by the
Board of Directors, may sign on behalf of the Corporation proxies to vote upon
shares of stock of other companies standing in the name of the Corporation.
* As Amended Through February 26, 2003
-14-
ARTICLE IX
INSPECTION OF BOOKS
The Board of Directors shall determine from time to time whether, and if
allowed, to what extent and at what time and places and under what conditions
and regulations, the accounts and books of the Corporation (except such as may
by law be specifically open to inspection) or any of them, shall be open to the
inspection of the stockholders, and no stockholder shall have any right to
inspect any account or book or document of the Corporation, except as conferred
by the laws of the State of Delaware, unless and until authorized so to do by
resolution of the Board of Directors or of the stockholders of the Corporation.
* As Amended Through February 26, 2003
-15-
ARTICLE X
FISCAL YEAR
The fiscal year of the Corporation shall be determined from time to time
by vote of the Board of Directors.
ARTICLE XI
AMENDMENTS
These By-Laws may be altered, amended, changed or repealed and new
By-Laws adopted by the stockholders or, to the extent provided in the
Certificate of Incorporation, by the Board of Directors, in either case at any
meeting called for that purpose at which a quorum shall be present. Any by-law,
whether made, altered, amended, changed or repealed by the stockholders or the
Board of Directors may be repealed, amended, changed, further amended, changed,
repealed or reinstated, as the case may be, either by the stockholders or by the
Board of Directors, as herein provided; except that this Article may be altered,
amended, changed or repealed only by vote of the stockholders.
ARTICLE XII
INDEMNIFICATION
SECTION 1. Indemnification. (a) The Corporation shall indemnify and
hold harmless, to the fullest extent permitted by applicable law as it presently
exists or may hereafter be amended, any person who was or is a party or is
threatened to be made a party or is otherwise involved in any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the
Corporation) by reason of the fact that he, or a person for whom he is the legal
representative, is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, partner, member, trustee, employee or agent of another
corporation, partnership, joint venture, limited liability company, trust or
other enterprise or non-profit entity against all liability, losses, expenses
(including attorneys' fees), judgments, fines, and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interest of the Corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he reasonably believed to be in or
not opposed to the best interest of the Corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his conduct
was unlawful.
(b) The Corporation shall indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action
or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director, officer, employee or agent
of the Corporation, or is or was serving at the request of the
* As Amended Through February 26, 2003
-16-
Corporation as a director, officer, partner, member, trustee, employee or agent
of another corporation, partnership, joint venture, limited liability company,
trust or other enterprise or non-profit entity against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection with the
defense or settlement of such action or suit if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Corporation; except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable for negligence or misconduct in the performance of his duty to the
Corporation unless and only to the extent that the Court of Chancery of the
State of Delaware or the court in which such action or suit was brought shall
determine upon application that despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery of the State
of Delaware or such other court shall deem proper.
(c) To the extent that any person referred to in paragraphs (a) or (b)
has been successful on the merits or otherwise in defense of any action, suit or
proceeding referred to therein, or in defense of any claim, issue or matter
therein, he or she shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred by him or her in connection therewith.
SECTION 2. Authorization. Any indemnification under Section 1 of this
Article (unless ordered by a court) shall be made by the Corporation only as
authorized in the specific case upon a determination that indemnification of the
director, officer, partner, member, trustee, employee or agent is proper in the
circumstances because such person has met the applicable standard of conduct set
forth in Section 1 of this Article. Such determination shall be made: (a) by the
Board of Directors by a majority vote of a quorum consisting of directors who
were not parties to such action, suit or proceeding, or (b) if such a quorum is
not obtainable, or, even if obtainable, a quorum of disinterested directors so
directs, by independent legal counsel in written opinion, or (c) by the
stockholders.
SECTION 3. Expense Advance. Expenses (including attorneys' fees)
incurred by an officer or director of the Corporation in defending any civil,
criminal, administrative or investigative action, suit or proceeding may be paid
by the Corporation in advance of the final disposition of such action, suit or
proceeding as authorized by the Board of Directors in the manner provided in
Section 2 of this Article upon receipt of an undertaking by or on behalf of such
officer or director to repay such amount, unless it shall ultimately be
determined that such person is entitled to be indemnified by the Corporation as
authorized in this Article. Such expenses (including attorneys' fees) incurred
by other employees or agents of the Corporation may be so paid upon such terms
and conditions, if any, as the Board of Directors deems appropriate.
SECTION 4. Nonexclusivity. The indemnification and advancement of
expenses provided by, or granted pursuant to, the other Sections of this Article
shall not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any statute,
by-law, agreement, vote of stockholders or disinterested directors or otherwise,
both as to action in an official capacity and as to action in another capacity
while holding such office, and shall continue as to a person who has ceased to
be a
* As Amended Through February 26, 2003
-17-
director, officer, partner, member, trustee, employee or agent and shall
inure to the benefit of the heirs, executors and administrators of such a
person.
SECTION 5. Insurance. The Corporation shall have power to purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, partner, member, trustee, employee or agent
of another corporation, partnership, joint venture, limited liability company,
trust or other enterprise or non-profit entity against any liability asserted
against and incurred by him or her in any such capacity, or arising out of his
or her status as such, whether or not the Corporation would have the power to
indemnify such person against such liability under the provisions of this
Article or Section 145 of the Delaware General Corporation Law.
SECTION 6. "The Corporation". For the purposes of this Article,
references to "the Corporation" shall include the resulting corporation and, to
the extent that the Board of Directors of the resulting corporation so decides,
all constituent corporations (including any constituent of a constituent)
absorbed in a consolidation or merger which, if its separate existence had
continued, would have had power and authority to indemnify its directors,
officers and employees or agents so that any person who is or was a director,
officer, employee or agent of such a constituent corporation or is or was
serving at the request of such constituent corporation as director, officer,
partner, member, trustee, employee or agent of another corporation, partnership,
joint venture, limited liability company, trust or other enterprise or
non-profit entity shall stand in the same position under the provisions of this
Article with respect to the resulting or surviving corporation if its separate
existence had continued.
SECTION 7. Other Indemnification. The Corporation's obligation, if any,
to indemnify any person who was or is serving at its request as a director,
trustee, partner, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise or non-profit entity shall
be reduced by any amount such person may collect as indemnification from such
other corporation, partnership, joint venture, trust or other enterprise or
non-profit entity or from insurance.
SECTION 8. Other Definitions. For purposes of this Article, references
to "other enterprises" shall include employee benefit plans; references to
"fines" shall include any excise taxes assessed on a person with respect to an
employee benefit plan; and references to "serving at the request of the
Corporation" shall include any service as a director, trustee, officer, employee
or agent of the Corporation which imposes duties on, or involves services by,
such director, trustee, officer, employee, or agent with respect to an employee
benefit plan, its participants, or beneficiaries; and a person who acted in good
faith and in a manner he or she reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be deemed to
have acted in a manner "not opposed to the best interests of the Corporation" as
referred to in this Article.
SECTION 9. Continuation of Indemnification. The indemnification and
advancement of expenses provided by, or granted pursuant to, this Article shall,
unless otherwise provided when authorized or ratified, continue as to a person
who has ceased to be a director, trustee, partner,
* As Amended Through February 26, 2003
-18-
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
SECTION 10. Amendment or Repeal. Neither the amendment nor repeal of
this Article nor the adoption of any provision of these By-Laws inconsistent
with this Article shall reduce, eliminate or adversely affect any right or
protection hereunder of any person in respect of any act or omission occurring
prior to the effectiveness of such amendment, repeal or adoption.
* As Amended Through February 26, 2003
-19-