EXHIBIT 3.2
XOOM.COM, INC.
AMENDED AND RESTATED BYLAWS
ARTICLE I
Offices and Agent
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1. Principal Office. The principal office of the Corporation may be
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located within or without the State of Delaware, as designated by the board of
directors. The Corporation may have other offices and places of business at
such places within or without the State of Delaware as shall be determined by
the directors or as may be required by the business of the Corporation.
2. Registered Office and Agent. The Corporation shall have and
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maintain at all times (a) a registered office in the State of Delaware, which
office shall be located at 1209 Orange Street, Wilmington, County of New Castle,
Delaware 19801, and (b) a registered agent located at such address whose name is
The Corporation Trust Company, until changed from time to time as provided by
the General Corporation Law of the State of Delaware ("Delaware Corporation
Law").
ARTICLE II
Stockholders' Meetings
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1. Annual Meetings. The annual meeting of stockholders for the
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election of directors and for the transaction of such other business as may
properly be brought before the meeting shall be held on such date and at such
time as determined by resolution of the board of directors. If this date falls
upon a legal holiday, then such meeting shall be held on the next succeeding
business day at the same hour. If no annual meeting is held in accordance with
the foregoing provisions, the board of directors shall cause the meeting to be
held as soon thereafter as convenient.
2. Special Meetings. Special meetings of the stockholders of the
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Corporation may be called for any purpose at any time by the Chairman of the
Board of Directors, Chief Executive Officer or President, and shall be called by
the Secretary if directed by the board of directors. Special meetings of the
stockholders of the Corporation may not be called by any other person or
persons. No business may be transacted at any special meeting except that
referred to in the notice thereof. Any amendment, change or repeal of this
Section 2 of Article II, or any other amendment to these Bylaws that will have
the effect of permitting circumvention of or modifying this Section 2 of Article
II, shall require the favorable vote, at a stockholders' meeting, of the holders
of at least sixty-six and two-thirds percent (66 2/3%) of the then-outstanding
shares of stock of the Corporation entitled to vote.
3. Place of Meetings. All meetings of stockholders of the Corporation
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shall be held within or without the State of Delaware as may be designated by
the board of directors or the President, or, if not designated, at the principal
office of the Corporation.
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4. Notice of Meetings.
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(a) Except as otherwise provided in these Bylaws or Delaware
Corporation Law, written notice of any meeting of stockholders, stating the
place, date and hour of the meeting and, in the case of a special meeting, the
purpose for which the meeting is called, shall be delivered either personally or
by mail to each stockholder of record entitled to vote at such meeting not less
than ten (10) nor more than sixty (60) days before the date of the meeting by or
at the direction of the board of directors, the President or the Secretary. If
mailed, such notice shall be deemed to be delivered as to any stockholder of
record when deposited in the United States mail addressed to the stockholder at
his address as it appears on the stock transfer books of the Corporation, with
postage prepaid.
(b) When a meeting is adjourned to another time or place, notice
need not be given of the adjourned meeting if the time and place thereof 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.
5. Waiver of Notice. Any stockholder, either before or after any
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stockholders' meeting, may waive in writing notice of the meeting, and his
waiver shall be deemed the equivalent of giving notice. Attendance at a meeting
by a stockholder shall constitute a waiver of notice, 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.
6. Fixing of Record Date. For the purpose of determining the
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stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors of the Corporation may fix in
advance a record date, which shall be not more than sixty (60) days nor less
than ten (10) days prior to the date of such meeting, nor more than sixty (60)
days prior to any other action. If no record date is fixed, the record date for
determining the 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. The record date
for determining stockholders for any 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
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
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adjourned meeting.
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7. Stockholders List. The officer who has charge of the stock ledger
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of the Corporation shall prepare and make, at least ten (10) days before every
meeting of stockholders, a complete list of the stockholders entitled to vote at
the meeting arranged in alphabetical order and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten (10) days prior to the meeting at a place within the city where the meeting
is to be held. The list shall also be produced and kept at the time and place
of the meeting during the whole time thereof and may be inspected by any
stockholder who is present.
8. Proxies.
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(a) A stockholder entitled to vote at a meeting of stockholders may
authorize another person or persons to act for him by proxy, which proxy shall
be filed with the Secretary at or before the meeting at which it is used. No
proxy shall be voted or acted upon after three (3) years from its date, unless
the proxy provides for a longer period.
(b) Without limiting the manner in which a stockholder may authorize
another person or persons to act for him as proxy pursuant to subsection (a) of
this Section, the following shall constitute a valid means by which a
stockholder may grant such authority:
(1) A stockholder may execute a writing authorizing another
person or persons to act for him as proxy. Execution may be accomplished by the
stockholder or his authorized officer, director, employee or agent signing such
writing or causing his signature to be affixed to such writing by any reasonable
means including, but not limited to, by facsimile signature.
(2) A stockholder may authorize another person or persons to act
for him as proxy by transmitting or authorizing the transmission of a telegram,
cablegram or other means of electronic transmission to the person who will be
the holder of the proxy or to a proxy solicitation firm, proxy support service
organization or like agent duly authorized by the person who will be the holder
of the proxy to receive such transmission, provided, that any such telegram,
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cablegram or other means of electronic transmission must either set forth or be
submitted with information from which it can be determined that the telegram,
cablegram or other electronic transmission was authorized by the stockholder.
Such authorization can be established by the signature of the stockholder on the
proxy, either in writing or by a signature stamp or facsimile signature, or by a
number or symbol from which the identity of the stockholder can be determined,
or by any other procedure deemed appropriate by the inspectors or other persons
making the determination as to due authorization. If it is determined that such
telegrams, cablegrams or other electronic transmissions are valid, the
inspectors or, if there are no inspectors, such other persons making that
determination shall specify the information upon which they relied.
(c) Any copy, facsimile telecommunication or other reliable
reproduction of the writing or transmission created pursuant to subsection (c)
of this section may be substituted or used in lieu of the original writing or
transmission for any and all purposes for
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which the original writing or transmission could be used, provided, that such
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copy, facsimile telecommunication or other reproduction shall be a complete
reproduction of the entire original writing or transmission.
9. Voting. Each stockholder shall have one vote for each share of
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stock entitled to vote held of record by such stockholder and a proportionate
vote for each fractional share so held, unless otherwise provided in the
Certificate of Incorporation.
Persons holding stock in a fiduciary capacity shall be entitled to
vote the shares so held. Persons whose stock is pledged shall be entitled to
vote, unless in the transfer by the pledgor on the books of the Corporation he
has expressly empowered the pledgee to vote thereon, in which case only the
pledgee, or his proxy, may represent such stock and vote thereon.
If shares having voting power stand of record in the names of two or
more persons, whether fiduciaries, members of a partnership, joint tenants,
tenants in common, tenants by the entirety, or otherwise, or if two or more
persons have the same fiduciary relationship respecting the same shares, unless
the Secretary is given written notice to the contrary and is furnished with a
copy of the instrument or order appointing them or creating the relationship
wherein it is so provided, their acts with respect to voting shall have the
following effect: (i) if only one votes, his act binds all; (ii) if more than
one vote, the act of the majority so voting binds all; and (iii) if more than
one vote, but the vote is evenly split on any particular matter, each fraction
may vote the securities in question proportionately, or any person voting the
shares or a beneficiary, if any, may apply to the Court of Chancery or any court
of competent jurisdiction in the State of Delaware to appoint an additional
person to act with the persons so voting the shares. The shares shall then be
voted as determined by a majority of such persons and the person appointed by
the court. If a tenancy is held in unequal interests, a majority or even-split
for the purpose of this sub-section shall be a majority or even-split in
interest.
10. Quorum and Required Vote. Except as otherwise provided by law,
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the Certificate of Incorporation or these Bylaws, the holders of a majority of
the shares entitled to vote at the meeting, present in person or by proxy, shall
constitute a quorum for the transaction of business. If a quorum is present, the
affirmative vote of a majority of the shares present or represented by proxy at
the meeting and entitled to vote on the subject matter shall be the act of the
stockholders, and, if there are two or more classes of stock entitled to vote as
separate classes, then, in the case of each such class, the affirmative vote of
a majority of the shares of that class present or represented by proxy at the
meeting shall be the vote of such class unless a different vote is required by
an express provision of law, the Certificate of Incorporation or these Bylaws.
11. Voting Procedures and Inspections of Elections.
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(a) The Corporation shall, in advance of any meeting of
stockholders, appoint one or more inspectors to act at the meeting and make a
written report thereof. The Corporation may designate one or more persons as
alternate inspectors to replace any inspector who fails to act. If no inspector
or alternate is able to act at a meeting of stockholders, the person presiding
at the meeting shall appoint one or more inspectors to act at the meeting. Each
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inspector, before entering upon the discharge of his duties, shall take and sign
an oath faithfully to execute the duties of inspector with strict impartiality
and according to the best of his ability.
(b) The inspectors shall (i) ascertain the number of shares
outstanding and the voting power of each, (ii) determine the shares represented
at a meeting and the validity of proxies and ballots, (iii) count all votes and
ballots, (iv) determine and retain for a reasonable period a record of the
disposition of any challenges made to any determination by the inspectors, and
(v) certify their determination of the number of shares represented at the
meeting and their count of all votes and ballots. The inspectors may appoint or
retain other persons or entities to assist the inspectors in the performance of
the duties of the inspectors.
(c) The date and time of the opening and the closing of the
polls for each matter upon which the stockholders will vote at a meeting shall
be announced at the meeting. No ballot, proxies or votes, nor any revocations
thereof or changes thereto, shall be accepted by the inspectors after the
closing of the polls unless the Court of Chancery upon application by a
stockholder shall determine otherwise.
(d) In determining the validity and counting of proxies and
ballots, the inspectors shall be limited to an examination of the proxies, any
envelopes submitted with those proxies, any information provided in accordance
with Section 212(c)(2) of the Delaware Corporation Law, the ballots and the
regular books and records of the corporation, except that the inspectors may
consider other reliable information for the limited purpose of reconciling
proxies and ballots submitted by or on behalf of banks, brokers, their nominees
or similar persons which represent more votes than the holder of a proxy is
authorized by the record owner to cast or more votes than the stockholder holds
of record. If the inspectors consider other reliable information for the limited
purpose permitted herein, the inspectors at the time they make their
certification pursuant to sub-section (b)(v) above shall specify the precise
information considered by them, including the person or persons from whom they
obtained the information, when the information was obtained, the means by which
the information was obtained and the basis for the inspectors' belief that such
information is accurate and reliable.
12. Stockholder Proposals at Annual Meetings.
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(a) 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
specified in the notice of meeting (or any supplement thereto) given by or at
the direction of the Board of Directors, otherwise properly brought before the
meeting by or at the direction of the Board of Directors or otherwise properly
brought before the meeting by a stockholder. In addition to any other applicable
requirements, 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
delivered to or mailed and received at the principal executive offices of the
corporation, not less than 45 days nor more than 75 days prior to the date on
which the corporation first mailed its proxy materials for the previous year's
annual meeting of shareholders (or the date on which the corporation mails its
proxy materials for the current year if
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during the prior year the corporation did not hold an annual meeting or if the
date of the annual meeting was changed more than 30 days from the prior year). 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 record
address of the stockholder proposing such business, (iii) the class and number
of shares of the corporation which are beneficially owned by the stockholder,
and (iv) any material interest of the stockholder in such business.
(b) Notwithstanding anything in these Bylaws to the contrary,
no business shall be conducted at the annual meeting except in accordance with
the procedures set forth in this Section 12 of Article II; provided, that
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nothing in this Section 12 of Article II shall be deemed to preclude discussion
by any stockholder of any business properly brought before the annual meeting in
accordance with said procedure.
(c) The presiding officer of an annual meeting shall, if the
facts warrant, determine and declare to the meeting that business was not
properly brought before the meeting in accordance with the provisions of this
Section 12 of Article II, and any such business not properly brought before the
meeting shall not be transacted.
13. Nominations of Persons for Election to the Board of Directors.
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(a) In addition to any other applicable requirements, only
persons who are nominated in accordance with the following procedures 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, by any nominating committee or person
appointed by the board of directors or by any stockholder of the Corporation
entitled to vote for the election of directors at the meeting who complies with
the notice procedures set forth in this Section 13 of Article II.
(b) 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. To be timely, a stockholder's notice must be delivered
to or mailed and received at the principal executive offices of the corporation,
not less than 45 days nor more than 75 days prior to the date on which the
corporation first mailed its proxy materials for the previous year's annual
meeting of shareholders (or the date on which the corporation mails its proxy
materials for the current year if during the prior year the corporation did not
hold an annual meeting or if the date of the annual meeting was changed more
than 30 days from the prior year). Such stockholder's notice shall set forth (i)
as to each person whom the stockholder proposes to nominate for election or re-
election as a director, (A) the name, age, business address and residence
address of the person, (B) the principal occupation or employment of the person,
(C) the class and number of shares of the Corporation which are beneficially
owned by the person, and (D) any other information relating to the person that
is required to be disclosed in solicitations for proxies for election of
directors pursuant to Rule 14a under the Securities Exchange Act of 1934; and
(ii) as to the stockholder giving the notice, (A) the name and record address of
the stockholder, and (B) the
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class and number of shares of the Corporation which are beneficially owned by
the stockholder. The Corporation may require any proposed nominee to furnish
such other information as may reasonably be required by the Corporation to
determine the eligibility of such proposed nominee to serve as a director of the
Corporation. No person shall be eligible for election as a director of the
Corporation unless nominated in accordance with the procedures set forth herein.
These provisions shall not apply to nomination of persons, if any, entitled to
be separately elected by holders of preferred stock.
(c) The presiding officer of the meeting shall, if the facts
warrant, determine and declare to the meeting that a nomination was not made in
accordance with the foregoing procedure, and the defective nomination shall be
disregarded.
14. Conduct of Meetings. The board of directors may adopt by
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resolution such rules and regulations for the conduct of meetings of
stockholders as it shall deem appropriate. Except to the extent inconsistent
with such rules and regulations as adopted by the board of directors, the
presiding officer of any meeting of stockholders 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 presiding officer, are appropriate for the
proper conduct of the meeting. Such rules, regulations and procedures, whether
adopted by the board of directors or prescribed by the presiding officer of the
meeting, may include, without limitation, the following: (i) the establishment
of an agenda or order of business for the meeting; (ii) rules and procedures for
maintaining order at the meeting and the safety of those present; (iii)
limitations on attendance at or participation in the meeting to stockholders of
record, their duly authorized and constituted proxies or such other persons as
the presiding officer of the meeting shall determine; (iv) restrictions on entry
to the meeting after the time fixed for the commencement thereof; and (v)
limitations on the time allotted to questions and/or comments by participants.
Unless and to the extent determined by the board of directors or the presiding
officer of the meeting, meetings of stockholders shall not be required to be
held in accordance with the rules of parliamentary procedure.
15. Adjournment. In case a quorum shall not be present at any
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meeting, the presiding officer of the meeting or a majority in interest of the
stockholders entitled to vote thereat present in person or by proxy shall have
power to adjourn the meeting from time to time, without notice other than
announcement at the meeting, until the requisite amount of stock entitled to
vote shall be represented. At any such adjourned meeting at which the requisite
amount of stock entitled to vote shall be represented, any business may be
transacted which might have been transacted at the meeting as originally
noticed, but only those stockholders entitled to vote at the meeting as
originally noticed shall be entitled to vote at any adjournment or adjournments
thereof. In addition, the board of directors may adjourn a meeting of the
stockholders if the board of directors determines that adjournment is necessary
or appropriate in order to enable the stockholders (i) to consider fully
information that the board of directors determines has not been made
sufficiently or timely available to stockholders or (ii) to otherwise
effectively exercise their voting rights.
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16. Action by Stockholders Without Meeting. Any action required by
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the provisions of Delaware Corporation Law to be taken by the stockholders of
the Corporation must be taken at a stockholders' meeting and not by written
consent or consents without a meeting. Any amendment, change or repeal of this
Section 16 of Article II, or any other amendment to these Bylaws that will have
the effect of permitting circumvention of or modifying this Section 16 of
Article II, shall require the favorable vote, at a stockholders' meeting, of the
holders of at least sixty-six and two-thirds percent (66 2/3%) of the
then-outstanding shares of stock of the Corporation entitled to vote.
ARTICLE III
Board of Directors
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1. Number, Qualifications and Term of Office.
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(a) The Board of Directors shall be constituted as follows:
(1) Except as otherwise provided in the Certificate of
Incorporation or the Delaware Corporation Law, the business and affairs of the
Corporation shall be managed by or under the direction of a board of directors
consisting of one or more members.
(2) Directors need not be stockholders of the Corporation.
(3) The number of directors of the Corporation shall not be
less than five (5) nor more than nine (9) until changed by amendment of the
Certificate of Incorporation or by a Bylaw amending this Section 1 of Article
III duly adopted by the vote or written consent of holders of a majority of the
outstanding shares or by the board of directors. The exact number of directors
shall be fixed from time to time, within the limits specified in the Certificate
of Incorporation or in this Section 1 of Article III, by a Bylaw or amendment
thereof duly adopted by the vote of a majority of the shares entitled to vote
represented at a duly held meeting at which a quorum is present or by the board
of directors. Subject to the foregoing provisions for changing the number of
directors, the number of directors of the Corporation has been fixed at eight
(8).
(4) Except as provided in Section 2 of Article III of these
Bylaws, the directors shall be elected by a plurality vote of the shares
represented in person or by proxy at the stockholders annual meeting in each
year and entitled to vote on the election of directors. Elected directors shall
hold office until the next annual meeting for the years in which their terms
expire and until their successors shall be duly elected and qualified. If, for
any cause, the board of 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
these Bylaws.
2. Vacancies. Except as otherwise provided by the Certificate of
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Incorporation or any amendments thereto, vacancies and newly created
directorships resulting from any increase in the number of authorized directors
may be filled by a majority of the directors then in office, although less than
a quorum, or by a sole remaining director, and each director so elected shall
hold office for the unexpired portion of the term of the director whose place
shall be vacant, and until his successor shall have been duly elected and
qualified. A vacancy in the board of directors shall be deemed to exist under
this Section 2 of Article III in
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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.
3. Resignation. Any director may resign by delivering his written
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resignation to the Corporation at its principal office, addressed to the
President or Secretary. Such resignation shall be effective upon receipt unless
it is specified to be effective at some other time or upon the happening of some
other event. When one or more directors shall resign from the board, 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, and each director so chosen shall hold office for the unexpired
portion of the term of the director whose place shall be vacated and until his
successor shall have been duly elected and qualified.
4. Compensation. Directors may be paid such compensation for their
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services and such reimbursements for expenses of attendance at meetings as the
board of directors may from time to time determine. No such payment shall
preclude any director from serving the Corporation in any other capacity and
receiving compensation therefor.
ARTICLE IV
Meetings of the Board
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1. Place of Meetings. The regular or special meetings of the board
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of directors or any committee designated by the board shall be held at the
principal office of the Corporation or at any other place within or without the
State of Delaware that a majority of the board of directors or any such
committee, as the case may be, may designate from time to time by resolution.
2. Regular Meetings. The board of directors shall meet each year
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immediately after and at the same place as the annual meeting of the
stockholders for the purpose of electing officers and transacting such other
business as may come before the meeting. The board of directors or any
committee designated by the board may provide, by resolution, for the holding of
additional regular meetings within or without the State of Delaware without
notice of the time and place of such meeting other than such resolution;
provided, that any director who is absent when such resolution is made shall be
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given notice of said resolution.
3. Special Meetings. Special meetings of the board of directors or
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any committee designated by the board may be held at any time and place, within
or without the State of Delaware, designated in a call by the chairman of the
board, if any, by the President or by a majority of the members of the board of
directors or any such committee, as the case may be.
4. Notice of Special Meetings. Except as otherwise provided by
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these Bylaws or the laws of the State of Delaware, written notice of each
special meeting of the board of directors or any committee thereof setting forth
the time and place of the meeting shall be given to each director by the
Secretary or by the officer or director calling the meeting not less
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than two (2) days prior to the time fixed for the meeting. Notice of special
meetings may be either given in person, by telephone, or by sending a copy of
the notice through the United States mail or by telegram, telex or telecopy,
charges prepaid, to the address of each director appearing on the books of the
Corporation. If mailed, such notice shall be deemed to be delivered when
deposited in the United States mail so addressed, with postage prepaid thereon.
If notice be given by telegram, telex or telecopy, such notice shall be deemed
to be delivered when the telegram, telex or telecopy is delivered to the
telegraph, telex or telecopy operator. Neither the business to be transacted at,
nor the purpose of, any regular or special meeting of the board of directors
need be specified in the notice or waiver of notice of such meeting.
5. Waiver of Notice. A director may waive, in writing, notice of
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any special meeting of the board of directors or any committee thereof, either
before, at, or after the meeting, and his waiver shall be deemed the equivalent
of giving notice. By attending or participating in a regular or special meeting,
a director waives any required notice of such meeting unless the director, at
the beginning of the meeting, objects to the holding of the meeting or the
transaction of business at the meeting.
6. Quorum and Action at Meeting. At meetings of the board of
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directors or any committee designated by the board, a majority of the total
number of directors, or a majority of the members of any such committee, as the
case may be, shall constitute a quorum for the transaction of business. In the
event one or more of the directors shall be disqualified to vote at any meeting,
then the required quorum shall be reduced by one for each such director so
disqualified; provided, that in no case shall less than one-third (1/3) of the
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number so fixed constitute a quorum. If a quorum is present, the act of the
majority of directors in attendance shall be the act of the board of directors
or any committee thereof, as the case may be, unless the act of a greater number
is required by these Bylaws, the Certificate of Incorporation or the Delaware
Corporation Law. If a quorum shall not be present at any meeting of the board of
directors, the directors present thereat may adjourn that meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present.
7. Presumption of Assent. A director who is present at a meeting
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of the board of directors or a committee thereof when action is taken is deemed
to have assented to the action taken unless: (i) he objects at the beginning of
such meeting to the holding of the meeting or the transacting of business at the
meeting; (ii) he contemporaneously requests that his dissent from the action
taken be entered in the minutes of such meeting; or (iii) he gives written
notice of his dissent to the presiding officer of such meeting before its
adjournment or to the Secretary of the Corporation immediately after adjournment
of such meeting. The right of dissent as to a specific action taken at a meeting
of the board or a committee thereof is not available to a director who votes in
favor of such action.
8. Committees. The board of directors may, by a resolution passed
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by a majority of the whole board of directors, designate one or more committees,
each committee to consist of one or more of the directors of the Corporation.
The board 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. In the absence or disqualification of a member of a
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committee, the member or members of the committee 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 the absent or disqualified member. Any such committee,
to the extent provided in the resolution of the board of directors and subject
to the provisions of Delaware Corporation Law, shall have and may exercise all
the powers and authority of the board of directors in the management of the
business and affairs of the Corporation, and may authorize the seal of the
Corporation to be affixed to all such papers which may require it. Each such
committee shall keep minutes and make such reports as the board of directors may
from time to time request. Except as the board of directors may otherwise
determine, any committee may make rules for the conduct of its business, but,
unless otherwise provided by the directors or in such rules, its business shall
be conducted as nearly as possible in the same manner as is provided in these
Bylaws for the board of directors.
9. Informal Action by Directors. Except as otherwise provided in the
----------------------------
Certificate of Incorporation, any action required or permitted by Delaware
Corporation Law to be taken at any meeting of the board of directors or any
committee thereof may be taken without a meeting if all members of the board or
committee, as the case may be, consent to the action in writing and the written
consents are filed with the minutes of proceedings of the board or committee.
10. Telephonic Meetings. Directors or any members of any committee may
-------------------
participate in a meeting of the board or committee by means of a conference
telephone or similar communications equipment by which all persons participating
in the meeting can hear each other at the same time. Such participation shall
constitute presence in person at the meeting.
ARTICLE V
Officers and Agents
-------------------
1. Enumeration, Election and Term. The officers of the Corporation
------------------------------
shall consist of a president, a secretary, a treasurer and such other officers
with such other titles as may be deemed necessary or desirable by the board of
directors, including a chief executive officer, chief financial officer, one or
more vice presidents, a controller, assistant treasurers and assistant
secretaries and a chairman of the board. Any number of offices may be held by
the same person, and no officer need be a stockholder or a resident of the State
of Delaware. Except as otherwise provided by law, the Certificate of
Incorporation or these Bylaws, each officer shall hold office until his
successor is elected and qualified or until his earlier death, resignation or
removal. The officers of the Corporation shall be elected annually by the board
of directors at the first meeting of the board held after each annual meeting of
the stockholders.
2. General Duties. All officers and agents of the Corporation, as
--------------
between themselves and the Corporation, shall have such authority and shall
perform such duties in the management of the Corporation as may be provided in
these Bylaws or as may be determined by resolution of the board of directors not
inconsistent with these Bylaws. In all cases where the duties of any officer,
agent or employee are not prescribed by these Bylaws or by the board of
11
directors, such officer, agent or employee shall follow the orders and
instructions of the President.
3. Vacancies. The board of directors may fill any vacancy occurring in
---------
any office for any reason and may, in its discretion, leave any vacancy unfilled
for such period as it may determine, other than a vacancy in the office of
president or secretary. The officer so selected shall hold office until his
successor is elected and qualified or until his earlier death, resignation or
removal.
4. Compensation. The board of directors from time to time shall fix
------------
the compensation of the officers of the Corporation. The compensation of other
agents and employees of the Corporation may be fixed by the board of directors,
by any committee designated by the board or by an officer to whom that function
has been delegated by the board.
5. Resignation and Removal. Any officer may resign by delivering his
-----------------------
written resignation to the Corporation at its principal office, addressed to the
President or Secretary. Such resignation shall be effective upon receipt,
unless it is specified to be effective at some other time or upon the happening
of some other event. Any officer or agent of the Corporation may be removed,
with or without cause, by a vote of the majority of the members of the board of
directors whenever in its judgment the best interests of the Corporation may be
served thereby, but such removal shall be without prejudice to the contract
rights, if any, of the person so removed. Election or appointment of an officer
or an agent shall not of itself create contract rights.
6. Chairman of the Board. The Chairman of the Board, if any, shall
---------------------
preside as chairman at meetings of the stockholders and the board of directors.
He shall, in addition, have such other duties as the board may prescribe that he
perform. At the request of the President, the Chairman of the Board may, in the
case of the President's absence or inability to act, temporarily act in his
place. In the case of death of the President or in the case of his absence or
inability to act without having designated the Chairman of the Board to act
temporarily in his place, the Chairman of the Board shall perform the duties of
the President, unless the board of directors, by resolution, provides otherwise.
If the Chairman of the Board shall be unable to act in place of the President,
the Vice Presidents may exercise such powers and perform such duties as provided
below.
7. Chief Executive Officer. The Chief Executive Officer, if any, shall
-----------------------
see that all orders and resolutions of the board of directors are carried into
effect and shall oversee the strategic planning and policy development of the
Corporation. The Chief Executive Officer shall have the authority to execute
bonds, mortgages and other contracts requiring a seal, under the seal of the
Corporation, except where required by law to be otherwise signed and executed
and except where the signing and execution thereof shall be expressly delegated
by the board of directors to some other officer or agent of the Corporation.
The Chief Executive Officer shall perform other duties commonly incident to this
office and shall perform such other duties and have such other powers as the
board of directors may from time to time prescribe.
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8. President. The President shall have general supervision of the
---------
business of the Corporation. In the event the position of chairman of the board
shall not be occupied or the chairman shall be absent or otherwise unable to
act, the President shall preside at meetings of the stockholders and directors
and shall discharge the duties of the presiding officer. The President shall
have the authority to execute bonds, mortgages and other contracts requiring a
seal under the seal of the Corporation, except where required by law to be
otherwise signed and executed and except where the signing and execution thereof
shall be expressly delegated by the board of directors to some other officer or
agent of the Corporation. At each annual meeting of the stockholders, the
President shall give a report of the business of the Corporation for the
preceding fiscal year and shall perform whatever other duties the board of
directors may from time to time prescribe.
9. Chief Financial Officer. The chief financial officer, or if none
-----------------------
the treasurer, shall have custody of corporate funds and securities and shall
keep full and accurate accounts of receipts and disbursements and shall deposit
all corporate monies and other valuable effects in the name and to the credit of
the Corporation in the depository or depositories of the Corporation, and shall
render an account of his or her transactions as chief financial officer and of
the financial condition of the Corporation to the President and/or the board of
directors upon request. Such power given to the treasurer to deposit and
disburse funds shall not, however, preclude any other officer or employee of the
Corporation from also depositing and disbursing funds when authorized to do so
by the board of directors. The chief financial officer shall, if required by
the board of directors, give the Corporation a bond in such amount and with such
surety or sureties as may be ordered by the board of directors for the faithful
performance of the duties of his office. The chief financial officer shall have
such other powers and perform such other duties as may be from time to time
prescribed by the board of directors or the President. In the absence of the
chief financial officer or his inability to act, the treasurer (or, in his
absence, the assistant treasurers or controller, if any) shall act with the same
authority and shall be subject to the same restrictions as are applicable to the
chief financial officer.
10. Vice Presidents. Each Vice President shall have such powers and
---------------
perform such duties as the board of directors may from time to time prescribe or
as the President may from time to time delegate to him. At the request of the
President, in the case of the President's absence or inability to act, any Vice
President may temporarily act in his place. In the case of the death of the
President, or in the case of his absence or inability to act without having
designated a Vice President or Vice Presidents to act temporarily in his place,
the board of directors, by resolution, may designate a Vice President or Vice
Presidents to perform the duties of the President. If no such designation shall
be made, the chief executive officer, if any, shall exercise such powers and
perform such duties, as provided above, but, if the Corporation has no chief
executive officer, or if the chief executive officer is unable to act in place
of the President, all of the Vice Presidents may exercise such powers and
perform such duties.
11. Secretary. The Secretary shall keep or cause to be kept in books
---------
provided for that purpose, the minutes of the meetings of the stockholders,
executive committee, if any, and any other committees, and of the board of
directors; shall see that all notices are duly given in accordance with the
provisions of these Bylaws and as required by law; shall be custodian of
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the records and of the seal of the Corporation and see that the seal is affixed
to all documents, the execution of which on behalf of the Corporation under its
seal is duly authorized and in accordance with the provisions of these Bylaws;
and, in general, shall perform all duties incident to the office of Secretary
and such other duties as may, from time to time, be assigned to him by the board
of directors or by the President. In the absence of the Secretary or his
inability to act, the assistant secretaries, if any, shall act with the same
powers and shall be subject to the same restrictions as are applicable to the
Secretary.
12. Delegation of Duties. Whenever an officer is absent, or whenever, for
--------------------
any reason, the board of directors may deem it desirable, the board may delegate
the powers and duties of an officer to any other officer or officers or to any
director or directors.
ARTICLE VI
Indemnification of Officers, Directors and Others
-------------------------------------------------
1. Indemnification.
(a) Each person who was or is a party or is threatened to be made a
party to or is involved (as a party, witness or otherwise), in any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (hereinafter a "Proceeding"), by reason of the
fact that he, or a person of whom he is the legal representative, is or was a
director or officer of the Corporation or is or was serving at the request of
the Corporation as a director or officer of another corporation or of a
partnership, joint venture, trust, or other enterprise, including service with
respect to employee benefit plans, whether the basis of the Proceeding is
alleged action in an official capacity as a director or officer or in any other
capacity while serving as a director or officer, shall be indemnified and held
harmless by the Corporation to the fullest extent authorized by the Delaware
Corporation Law, as the same exists or may hereafter be amended or interpreted
(but, in the case of any such amendment or interpretation, only to the extent
that such amendment or interpretation permits the Corporation to provide broader
indemnification rights than were permitted prior thereto) against all expenses,
liability and loss (including attorneys' fees, judgments, fines, ERISA excise
taxes or penalties, and amounts paid or to be paid in settlement, and any
interest, assessments or other charges imposed thereon, and any federal, state,
local or foreign taxes imposed on any person indemnified hereby as a result of
the actual or deemed receipt of any payments under this Article VI) reasonably
incurred or suffered by such person in connection with investigating, defending,
being a witness in, or participating in (including on appeal), or preparing for
any of the foregoing in, any Proceeding (hereinafter "Losses"); provided,
--------
however, that except as to actions to enforce indemnification rights pursuant to
- -------
Section 3 of Article VI, the Corporation shall indemnify any officer or director
seeking indemnification in connection with a Proceeding (or part thereof)
initiated by such person only if the Proceeding (or part thereof) was authorized
by the Board of Directors of the Corporation. The right to indemnification
conferred in this Article VI shall be a contract right.
(b) Each person who was or is a party or is threatened to be made a
party to or is involved (as a party, witness or otherwise), in any threatened,
pending or completed
14
Proceeding, by reason of the fact that he, or a person of whom he is the legal
representative, is or was an employee or agent (other than an officer or
director) of the Corporation or is or was serving at the request of the
Corporation as an employee or agent (other than an officer or director) of
another corporation or of a partnership, joint venture, trust, or other
enterprise, including service with respect to employee benefit plans, whether
the basis of the Proceeding is alleged action in an official capacity as an
employee or agent or in any other capacity while serving as an employee or
agent, may be indemnified and held harmless by the Corporation to the fullest
extent authorized by the Delaware Corporation Law, as the same exists or may
hereafter be amended or interpreted (but, in the case of any such amendment or
interpretation, only to the extent that such amendment or interpretation permits
the Corporation to provide broader indemnification rights than were permitted
prior thereto) against all Losses.
2. Authority to Advance Expenses. Expenses incurred by an officer or
-----------------------------
director (acting in his capacity as such) in defending a Proceeding shall be
paid by the Corporation in advance of the final disposition of such Proceeding,
provided, that if required by the Delaware Corporation Law, as amended, such
- --------
expenses shall be advanced only upon delivery to the Corporation of an
undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by
the Corporation as authorized in this Article VI or otherwise. Expenses incurred
by employees or other agents of the Corporation (or by the directors or officers
not acting in their capacity as such, including service with respect to employee
benefit plans) may be advanced upon such terms and conditions as the Board of
Directors deems appropriate. Any obligation to reimburse the Corporation for
expense advances shall be unsecured and no interest shall be charged thereon.
3. Right of Claimant to Bring Suit. If a claim under Section 1 or 2 of
-------------------------------
Article VI is not paid in full by the Corporation within 30 days after a written
claim has been received by the Corporation, the claimant may at any time
thereafter bring suit against the Corporation to recover the unpaid amount of
the claim and, if successful in whole or in part, the claimant shall be entitled
to be paid also the expense (including attorneys' fees) of prosecuting such
claim. It shall be a defense to any such action (other than an action brought
to enforce a claim for expenses incurred in defending a Proceeding in advance of
its final disposition where the required undertaking has been tendered to the
corporation) that the claimant has not met the standards of conduct that make it
permissible under the Delaware Corporation Law for the Corporation to indemnify
the claimant for the amount claimed. The burden of proving such a defense shall
be on the Corporation. Neither the failure of the Corporation (including its
Board of Directors, independent legal counsel or stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper under the circumstances because he has met the applicable
standard of conduct set forth in the Delaware Corporation Law, nor an actual
determination by the Corporation (including its Board of Directors, independent
legal counsel or stockholders) that the claimant had not met such applicable
standard of conduct, shall be a defense to the action or create a presumption
that claimant has not met the applicable standard of conduct.
15
4. Provisions Nonexclusive. The rights conferred on any person by this
-----------------------
Article VI shall not be exclusive of any other rights that such person may have
or hereafter acquire under any statute, provision of the Certificate of
Incorporation, as may be amended from time to time, 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. To the extent that any provision of the Certificate of Incorporation,
agreement or vote of the stockholders or disinterested directors is inconsistent
with these bylaws, the provision, agreement or vote shall take precedence.
5. Authority to Insure. The corporation may purchase and maintain
-------------------
insurance to protect itself and any director, officer, employee or other agent
(collectively, "Agents") against any Losses, whether or not the Corporation
would have the power to indemnify the Agent against such Losses under applicable
law or the provisions of these Bylaws.
6. Survival of Rights. The rights provided by this Article VI shall
------------------
continue as to a person who has ceased to be an Agent and shall inure to the
benefit of the heirs, executors, and administrators of such a person.
7. Settlement of Claims. The Corporation shall not be liable to
--------------------
indemnify any Agent under this Article VI (a) for any amounts paid in settlement
of any action or claim effected without the Corporation's written consent, which
consent shall not be unreasonably withheld; or (b) for any judicial award if the
Corporation was not given a reasonable and timely opportunity, at its expense,
to participate in the defense of such action.
8. Effect of Amendment. Any amendment, repeal or modification of this
-------------------
Article VI shall not adversely affect any right or protection of any Agent
existing at the time of such amendment, repeal or modification.
9. Subrogation. In the event of payment under this Article VI, the
-----------
Corporation shall be subrogated to the extent of such payment to all of the
rights of recovery of the Agent, who shall execute all papers required and shall
do everything that may be necessary to secure such rights, including the
execution of such documents necessary to enable the Corporation effectively to
bring suit to enforce such rights.
10. No Duplication of Payments. The Corporation shall not be liable
--------------------------
under this Article VI to make any payment in connection with any claim made
against the Agent to the extent the Agent has otherwise actually received
payment (under any insurance policy, agreement, vote or otherwise) of the
amounts otherwise indemnifiable hereunder.
ARTICLE VII
Capital Stock
-------------
1. Certificates of Stock. The shares of the Corporation shall be
---------------------
represented by certificates, provided that the board of directors of the
Corporation may, by resolution, provide that some or all of any or all classes
or series of its stock shall be uncertificated shares. Any such resolution
shall not apply to shares represented by a certificate until such certificate is
16
surrendered to the Corporation. Notwithstanding the adoption of such a
resolution by the board of directors, every holder of stock represented by
certificates and upon request every holder of uncertificated shares shall be
entitled to have a certificate signed by, or in the name of the Corporation by,
the Chairman or Vice Chairman of the board of directors, or the President or
Vice President, and by the Treasurer or an assistant treasurer, or the Secretary
or an assistant secretary, representing the number of shares registered in
certificate form. Any or all the signatures on the certificate may be a
facsimile. In case any officer, transfer agent, or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the Corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
2. Issuance of Stock. Unless otherwise voted by the stockholders and
-----------------
subject to the provisions of the Certificate of Incorporation, the whole or any
part of any unissued balance of the authorized capital stock of the Corporation
or the whole or any part of any unissued balance of the authorized capital stock
of the Corporation held in its treasury may be issued, sold, transferred or
otherwise disposed of by resolution of the board of directors in such manner,
for such consideration and on such terms as the board of directors may
determine. Consideration for such shares of capital stock shall be expressed in
dollars, and shall not be less than the par value or stated value therefor, as
the case may be. The par value for shares, if any, shall be stated in the
Certificate of Incorporation, and the stated value for shares, if any, shall be
fixed from time to time by the board of directors.
3. Lost Certificates. The board of directors may direct a new
-----------------
certificate to be issued in place of any previously issued certificate alleged
to have been destroyed or lost if the owner makes an affidavit or affirmation of
that fact and produces such evidence of loss or destruction as the board may
require. The board, in its discretion, may as a condition precedent to the
issuance of a new certificate require the owner to indemnify the Corporation
(including providing the Corporation with a bond) against any claim that may be
made against the Corporation relating to the allegedly destroyed or lost
certificate.
4. Transfer of Shares. Subject to applicable law, shares of stock of
------------------
the Corporation may be transferred on its books upon the surrender to the
Corporation or its transfer agent of the certificates representing such shares,
if any, duly endorsed or accompanied by a written assignment or power of
attorney duly executed and with such proof of authority or authenticity of
signature as the Corporation or its transfer agent may reasonably require. In
that event, the surrendered certificates shall be cancelled, new certificates
issued to the persons entitled to them, if any, and the transaction recorded on
the books of the Corporation.
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 to hold liable
for calls and assessments a person registered on its books as the owner of
shares, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of the other person, whether or not
it shall have
17
express or other notice thereof, except as otherwise provided by the laws of the
State of Delaware.
6. Stock Ledger. An appropriate stock journal and ledger shall be kept
------------
by the Secretary or such registrars or transfer agents as the directors by
resolution may appoint in which all transactions in the shares of stock of the
Corporation shall be recorded.
7. Restriction on Transfer of Shares. Notice of any restriction on the
---------------------------------
transfer of the stock of the Corporation shall be placed on each certificate of
stock issued or, in the case of uncertificated shares, contained in the notice
sent to the registered owner of such shares in accordance with the provisions of
the Delaware Corporation Law.
ARTICLE VIII
Fiscal Year
-----------
The fiscal year of the Corporation shall be determined by the board of
directors and set forth in the minutes of the meetings of the directors. Said
fiscal year may be changed from time to time by the board of directors in its
discretion.
ARTICLE IX
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 at any regular or special meeting, pursuant to law. Dividends
may be paid in cash, in property or in shares of the capital stock, subject to
the provisions of the Certificate of Incorporation. 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 directors from time to time, in their
absolute discretion, think proper as a reserve or reserves to meet
contingencies, or for equalizing dividends, or for repairing or maintaining any
property of the Corporation, or for such other purpose as the directors shall
think in the best interests of the Corporation, and the directors may modify or
abolish any such reserve in the manner in which it was created.
ARTICLE X
Amendments
----------
These Bylaws may be repealed, altered or amended or new Bylaws adopted at
any meeting of the stockholders, either annual or special, by the affirmative
vote of a majority of the stock entitled to vote at such meeting, unless a
larger vote is required by these Bylaws or the Certificate of Incorporation. The
board of directors shall also have the authority to repeal, alter or amend these
Bylaws or adopt new Bylaws (including, without limitation, the amendment of any
Bylaws setting forth the number of directors who shall constitute the whole
board of directors) by unanimous written consent or at any annual, regular or
special meeting by the affirmative vote of a majority of the whole number of
directors, subject to the power of the stockholders to change or repeal such
Bylaws; provided, that the board of directors shall not make or alter any Bylaws
--------
fixing the qualifications, classifications, or term of office of directors.
18
ARTICLE XI
Miscellaneous
-------------
1. Gender. Whenever required by the context, the singular shall include
------
the plural, the plural the singular, and one gender shall include all genders.
2. Invalid Provision. The invalidity or unenforceability of any
-----------------
particular provision of these Bylaws shall not affect the other provisions
herein, and these Bylaws shall be construed in all respects as if such invalid
or unenforceable provision were omitted.
3. Governing Law. These Bylaws shall be governed by and construed in
-------------
accordance with the laws of the State of Delaware.
19