Exhibit 3.2
SECOND AMENDED AND RESTATED
BY-LAWS
OF
LEXENT INC.
----------
Incorporated under the Laws of the
State of Delaware
----------
As Amended August 14, 2000
As Authorized February 17, 2000
TABLE OF CONTENTS
PAGE
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ARTICLE I Offices 1
ARTICLE II Meetings of Stockholders 1
Section 1 Place of Meetings 1
Section 2 Annual Meeting 1
Section 3 Special Meetings 2
Section 4 Notice of Meetings 2
Section 5 List of Stockholders 2
Section 6 Quorum 3
Section 7 Voting 3
Section 8 Proxies 3
ARTICLE III Board of Directors 4
Section 1 Powers 4
Section 2 Election 4
Section 3 Number 4
Section 4 Term 4
Section 5 Notification of Nominations 4
Section 6 Quorum and Manner of Acting 5
Section 7 Organization Meeting 5
Section 8 Regular Meetings 5
Section 9 Special Meetings; Notice 5
Section 10 Removal of Directors 6
Section 11 Resignations 6
Section 12 Vacancies 6
Section 13 Compensation of Directors 6
Section 14 Action Without a Meeting 7
Section 15 Telephonic Participation in Meetings 7
Section 16 Committees 7
ARTICLE IV Officers 7
Section 1 Principal Officers 7
Section 2 Election and Term of Office 7
Section 3 Other Officers 7
Section 4 Removal 8
Section 5 Resignations 8
Section 6 Vacancies 8
Section 7 Chairman of the Board 8
Section 8 Vice Chairman of the Board 8
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Section 9 President 8
Section 10 Vice President 8
Section 11 Treasurer 8
Section 12 Secretary 9
Section 13 Salaries 9
ARTICLE V Indemnification 9
Section 1 Right of Indemnification 9
Section 2 Expenses 9
Section 3 Agreements 9
Section 4 Other Rights of Indemnification 10
Section 5 Indemnification of Employees and Agents 10
Section 6 Insurance 10
ARTICLE VI Shares and Their Transfer 10
Section 1 Certificate for Stock 10
Section 2 Stock Certificate Signature 10
Section 3 Stock Ledger 10
Section 4 Cancellation 10
Section 5 Registrations of Transfers of Stock 11
Section 6 Regulations 11
Section 7 Lost, Stolen, Destroyed or Mutilated Certificates 11
Section 8 Record Dates 11
ARTICLE VII Miscellaneous Provisions 12
Section 1 Corporate Seal 12
Section 2 Voting of Stocks Owned by the Corporation 12
Section 3 Dividends 12
ARTICLE VIII Amendments 12
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SECOND AMENDED AND RESTATED
BY-LAWS
OF
LEXENT INC.
(a Delaware corporation)
----------
ARTICLE I
OFFICES
The registered office of the Corporation in the State of Delaware shall
be located in the City of Wilmington, County of New Castle. The Corporation may
establish or discontinue, from time to time, such other offices within or
without the State of Delaware as may be deemed proper for the conduct of the
Corporation's business.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1. PLACE OF MEETINGS. All meetings of stockholders shall be
held at such place or places, within or without the State of Delaware, as may
from time to time be fixed by the Board of Directors, or as shall be specified
in the respective notices, or waivers of notice, thereof.
SECTION 2. ANNUAL MEETING. (a) The annual meeting of stockholders for
the election of Directors and the transaction of other business shall be held on
such date and at such place as may be designated by the Board of Directors. At
each annual meeting the stockholders entitled to vote shall elect a Board of
Directors and may transact such other proper business as may come before the
meeting.
(b) To be properly brought before an annual meeting, business must be
(i) specified in the notice of the meeting (or any supplement thereto) given by
or at the direction of the Chairman of the meeting or the Board of Directors,
(ii) otherwise properly brought before the meeting by or at the direction of the
Chairman of the meeting or the Board of Directors or (iii) otherwise properly
brought before the meeting by a stockholder. For business to be properly brought
before an annual meeting by a stockholder, the stockholder must have given
written notice thereof, either by personal delivery or by United States mail,
postage prepaid, to the Secretary of the Corporation, not more than 120 days or
less than 90 days in advance of the anniversary date of the immediately
preceding annual meeting. Any such notice 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 meeting and the reasons for
conducting such business at the meeting, and in the event that such business
includes a proposal to amend either the Certificate of Incorporation or By-laws
of the Corporation, the language of the proposed
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amendment; (ii) the name and address of the stockholder proposing such business;
(iii) a representation that the stockholder is a holder of record of stock of
the Corporation entitled to vote at such meeting and intends to appear in person
or by proxy at the meeting to propose such business; (iv) any material interest
of the stockholder in such business; and (v) if the stockholder intends to
solicit proxies in support of such stockholder's proposal, a representation to
that effect. No business shall be conducted at an annual meeting of stockholders
except in accordance with this Section 2(b), and the Chairman of the meeting may
refuse to permit any business to be brought before an annual meeting without
compliance with the foregoing procedures or if the stockholder solicits proxies
in support of such stockholder's proposal without such stockholder having made
the representation required by clause (v) of the preceding sentence.
SECTION 3. SPECIAL MEETINGS. Except as otherwise required by law,
special meetings of the stockholders for any purpose or purposes may be called
only by the Chairman of the Board, the President, or a majority of the entire
Board of Directors. Only such business as is specified in the notice of any
special meeting of the stockholders shall come before such meeting.
SECTION 4. NOTICE OF MEETINGS. Whenever stockholders are required or
permitted to take any action at a meeting, a written notice of the meeting shall
be given which shall state the place, date and hour of the meeting, and, in the
case of a special meeting, the purpose or purposes for which the meeting is
called. Unless otherwise provided by law, the written notice of any meeting
shall be given not less than ten nor more than sixty days before the date of the
meeting to each stockholder of record entitled to vote at such meeting. If
mailed, such notice shall be deemed to be given when deposited in the United
States mail, postage prepaid, directed to the stockholder at such stockholder's
address as it appears on the records of the Corporation. Notice shall not be
required to be given to any stockholder who shall waive such notice in writing,
whether prior to or after such meeting, or who shall attend such meeting in
person or by proxy unless such attendance is for the express purpose of
objecting, at the beginning of such meeting, to the transactions of any business
because the meeting is not lawfully called or convened.
SECTION 5. LIST OF STOCKHOLDERS. It shall be the duty of the Secretary
or other officer of the Corporation who shall have charge of the stock ledger
(or a transfer agent or similar entity appointed to perform such duty) to
prepare and make, at least ten days before every meeting of the stockholders, a
complete list of the stockholders entitled to vote thereat, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in his name. 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 days prior to the meeting, either
at a place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall be kept and produced at the time
and place of the meeting during the whole time thereof and subject to the
inspection of any stockholder who may be present. The original or duplicate
ledger shall be the only evidence as to who are the stockholders entitled to
examine such list or the books of the Corporation or to vote in person or by
proxy at such meeting.
SECTION 6. QUORUM. At each meeting of the stockholders, the holders of
record of a majority of the issued and outstanding stock of the Corporation
entitled to vote at such
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meeting, present in person or by proxy, shall constitute a quorum for the
transaction of business, except where otherwise provided by law, the Certificate
of Incorporation or these By-laws. In the absence of a quorum, any officer
entitled to preside at, or act as Secretary of, such meeting shall have the
power to adjourn the meeting from time to time until a quorum shall be
constituted.
SECTION 7. VOTING. Every stockholder of record who is entitled to vote
shall at every meeting of the stockholders be entitled to one vote for each
share of stock held by him on the record date; EXCEPT, HOWEVER, that shares of
its own stock belonging to the Corporation or to another corporation, if a
majority of the shares entitled to vote in the election of directors of such
other corporation is held by the Corporation, shall neither be entitled to vote
nor counted for quorum purposes. Nothing in this Section shall be construed as
limiting the right of the Corporation to vote its own stock held by it in a
fiduciary capacity. At all meetings of the stockholders, a quorum being present,
all matters shall be decided by majority vote of the shares of stock entitled to
vote held by stockholders present in person or by proxy, except as otherwise
required by law or the Certificate of Incorporation. Unless demanded by a
stockholder of the Corporation present in person or by proxy at any meeting of
the stockholders and entitled to vote thereat or so directed by the chairman of
the meeting or required by law, the vote thereat on any question need not be by
written ballot. On a vote by written ballot, each ballot shall be signed by the
stockholder voting, or in his name by his proxy, if there be such proxy, and
shall state the number of shares voted by him and the number of votes to which
each share is entitled.
SECTION 8. PROXIES. Each stockholder entitled to vote at a meeting of
stockholders or to express consent to corporate action in writing without a
meeting may authorize another person or persons to act for him by proxy. A proxy
acting for any stockholder shall be duly appointed by an instrument in writing
subscribed by such stockholder. No proxy shall be valid after the expiration of
three years from the date thereof unless the proxy provides for a longer period.
ARTICLE III
BOARD OF DIRECTORS
SECTION 1. POWERS. The business and affairs of the Corporation shall be
managed under the direction of the Board of Directors.
SECTION 2. ELECTION. Except as otherwise provided by law, Directors
shall be elected at the annual meeting of stockholders. Acceptance of the office
of Director may be expressed orally or in writing, and attendance at the
organization meeting shall constitute such acceptance.
SECTION 3. NUMBER. The number of Directors shall be such number as
shall be determined from time to time by the Board of Directors but initially
shall be eight.
SECTION 4. TERM. The Directors shall be classified with respect to time
for which they shall severally hold office by dividing them into three classes,
each consisting of one-third, or as equal in number as possible, of the whole
number of the Board of Directors, and all Directors shall hold office until
their successors are chosen and qualified, or until their earlier
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death, resignation, or removal. At the first meeting held for election of the
Board of Directors following adoption of these By-laws, Directors of the first
class ("Class I Directors") shall be elected for a term of one-year; Directors
of the second class ("Class II Directors") shall be elected for a term of
two-years; Directors of the third class ("Class III Directors") shall be elected
for a term of three years; and at each annual election thereafter, successors to
the class of Directors whose terms shall expire that year shall be elected to
hold office for a term of three years, so that the term of office of one class
of Directors shall expire in each year. Any Director may resign by delivering
his written resignation to the Corporation at its principal office or to the
President or Secretary, except that no Director shall resign by delivering such
resignation to himself. 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.
SECTION 5. NOTIFICATION OF NOMINATIONS. Nominations for the election of
directors may be made by the Board of Directors or by any stockholder entitled
to vote for the election of directors. Any stockholder entitled to vote for the
election of directors at a meeting may nominate persons for election as
directors only if written notice of such stockholder's intent to make such
nomination is given, either by personal delivery or by United States mail,
postage prepaid, to the Secretary of the Corporation (i) with respect to an
election to be held at an annual meeting of stockholders, not more than 120 days
or less than 90 days in advance of the anniversary date of the immediately
preceding annual meeting, and (ii) with respect to an election to be held at a
special meeting of stockholders for the election of directors, not later than
the close of business on the seventh day following the date on which notice of
such meeting is first given to stockholders. Each such notice shall set forth
(a) the name and address of the stockholder who intends to make the nomination
and of the person or persons to be nominated; (b) a representation that the
stockholder is a holder of record of stock of the Corporation entitled to vote
at such meeting and intends to appear in person or by proxy at the meeting to
nominate the person or persons specified in the notice; (c) a description of all
arrangements or understandings between the stockholder and each nominee and any
other person or persons (naming such person or persons) pursuant to which the
nomination or nominations are to be made by the stockholder; (d) such other
information regarding each nominee proposed by such stockholder as would have
been required to be included in a proxy statement filed pursuant to the proxy
rules of the Securities and Exchange Commission had each nominee been nominated,
or intended to be nominated, by the Board of Directors; (e) the consent of each
nominee to serve as a director of the corporation if so elected; and (f) if the
stockholder intends to solicit proxies in support of such stockholder's
nominee(s), a representation to that effect. The Chairman of the meeting may
refuse to acknowledge the nomination of any person which was not made in
accordance with the foregoing procedure or if the stockholder nominating such
person(s) solicits proxies in support of such stockholder's nominee(s) without
such stockholder having made the representation required by clause (f) of the
preceding sentence.
SECTION 6. QUORUM AND MANNER OF ACTING. Unless otherwise provided by
law, the presence of 50% of the whole Board of Directors (or any committee
thereof) shall be necessary to constitute a quorum for the transaction of
business. In the absence of a quorum, a majority of the Directors present may
adjourn the meeting from time to time until a quorum shall be present. Notice of
any adjourned meeting need not be given. At all meetings of Directors, a quorum
being present, all matters shall be decided by the affirmative vote of a
majority of the Directors present, except as otherwise required by law. The
Board of Directors (or any committee thereof) may hold its meetings at such
place or places within or without the State of
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Delaware as the Board of Directors may from time to time determine or as shall
be specified in the respective notices, or waivers of notice, thereof.
SECTION 7. ORGANIZATION MEETING. Immediately after each annual meeting
of stockholders for the election of Directors the Board of Directors shall meet
at the place of the annual meeting of stockholders for the purpose of
organization, the election of officers and the transaction of other business.
Notice of such meeting need not be given. If such meeting is held at any other
time or place, notice thereof must be given as hereinafter provided for special
meetings of the Board of Directors, subject to the execution of a waiver of the
notice thereof signed by, or the attendance at such meeting of, all Directors
who may not have received such notice.
SECTION 8. REGULAR MEETINGS. Regular meetings of the Board of Directors
will be held quarterly, as regularly scheduled, and may be held at such place,
within or without the State of Delaware, as shall from time to time be
determined by the Board of Directors. After there has been such determination,
and notice thereof has been once given to each member of the Board of Directors
as hereinafter provided for special meetings, regular meetings may be held
without further notice being given.
SECTION 9. SPECIAL MEETINGS; NOTICE. Special meetings of the Board of
Directors (or any committee thereof) shall be held whenever called by the
Chairman of the Board, if any, the President or by a majority of the Directors.
Notice of each such meeting shall be mailed to each Director, addressed to him
at his residence or usual place of business, at least five days before the date
on which the meeting is to be held, or shall be sent to him at such place by
telegraph, cable, radio or wireless, or be delivered personally or by telephone,
not later than the day before the day on which such meeting is to be held;
PROVIDED, HOWEVER, that any such notice relating to a meeting of a committee of
the Board of Directors need only be sent to each Director serving on such
committee. Each such notice shall state the time and place of the meeting and,
as may be required, the purposes thereof. Notice of any meeting of the Board of
Directors (or any committee thereof) need not be given to any Director if he
shall sign a written waiver thereof either before or after the time stated
therein for such meeting, or if he shall be present at the meeting. Unless
limited by law, the Company's Certificate of Incorporation, these By-laws or the
terms of the notice thereof, any and all business may be transacted at any
meeting without the notice thereof having specifically identified the matters to
be acted upon.
SECTION 10. REMOVAL OF DIRECTORS. Any Director or Directors may be
removed, with or without cause, at any time, by action of the holders of record
of the majority of the issued and outstanding stock of the Corporation (a)
present in person or by proxy at a meeting of holders of such stock and entitled
to vote thereon or (b) by a consent in writing in the manner contemplated in
Section 9 of Article II, and the vacancy or vacancies in the Board of Directors
caused by any such removal may be filled by action of such a majority at such
meeting or at any subsequent meeting or by consent.
SECTION 11. RESIGNATIONS. Any Director of the Corporation may resign at
any time by giving written notice to the Chairman of the Board, if any, the
President, the Vice President or the Secretary of the Corporation. The
resignation of any Director shall take effect upon receipt of notice thereof or
at such later time as shall be specified in such notice; and,
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unless otherwise specified therein, the acceptance of such resignation shall not
be necessary to make it effective.
SECTION 12. VACANCIES. Any vacancies on the Board of Directors
resulting from death, resignation, removal or other cause shall only be filled
by the affirmative vote of a majority of the remaining directors then in office,
even though less than a quorum of the Board of Directors, or by a sole remaining
director, and newly created directorships resulting from any increase in the
number of directors shall be filled by the Board of Directors, or if not so
filled, by the stockholders at the next annual meeting thereof or at a special
meeting called for that purpose in accordance with Article II, Section 3 of
these By-laws. Any director elected in accordance with the preceding sentence
shall hold office for the remainder of the full term of such director and until
such director's successor shall have been elected and qualified.
SECTION 13. COMPENSATION OF DIRECTORS. Directors, as such, may receive
a stated salary for their services as declared by resolution of the Board of
Directors. In addition, Directors may receive a specific sum fixed by the Board
of Directors plus expenses for attendance at each regular or special meeting of
the Board or any committee thereof; PROVIDED, that nothing herein contained
shall be construed to preclude any Director from serving the Corporation or any
parent or subsidiary corporation thereof in any other capacity and receiving
compensation in such capacity.
SECTION 14. ACTION WITHOUT A MEETING. Any action required or permitted
to be taken at any meeting of the Board of Directors (or any committee thereof)
may be taken without a meeting if a written consent thereto is signed by all
members of the Board (or such committee), and such written consent is filed with
the minutes or proceedings of the Board.
SECTION 15. TELEPHONIC PARTICIPATION IN MEETINGS. Members of the Board
of Directors (or any committee thereof) may participate in a meeting of the
Board (or such committee) by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and such participation shall constitute presence in
person at such meeting.
SECTION 16. COMMITTEES. The Board of Directors may appoint such
committees of the Board of Directors as it may deem appropriate, and such
committees shall exercise the authority delegated to them. The membership of any
such committee shall consist of such Directors as the Board of Directors may
deem advisable from time to time to serve. The Board of Directors may fill in
any vacancies on any committee as they occur. Each committee shall meet as often
as its business may require.
ARTICLE IV
OFFICERS
SECTION 1. PRINCIPAL OFFICERS. The Board of Directors shall elect a
President, a Secretary and a Treasurer, and may in addition elect a Chairman of
the Board, Vice Chairman, one or more Executive Vice Presidents, a Senior Vice
President and General Counsel and such other officers as it deems fit; the
President, the Secretary, the Treasurer, the Chairman of the Board, if any, the
Vice Chairman, if any, the Executive Vice Presidents, if any, the Senior Vice
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President and General Counsel, and Senior Vice President, Human Resources, if
any, being the principal officers of the Corporation. One person may hold, and
perform the duties of, any two or more of said offices.
SECTION 2. ELECTION AND TERM OF OFFICE. The principal officers of the
Corporation shall be elected annually by the Board of Directors at the
organization meeting thereof. Each such officer shall hold office until his
successor shall have been elected and shall qualify, or until his earlier death,
resignation or removal.
SECTION 3. OTHER OFFICERS. In addition, the Board may elect, or the
Chairman of the Board, if any, or the President may appoint, such other officers
as they deem fit. Any such other officers chosen by the Board of Directors shall
be subordinate officers and shall hold office for such period, have such
authority and perform such duties as the Board of Directors, the Chairman of the
Board, if any, or the President may from time to time determine.
SECTION 4. REMOVAL. Any officer may be removed, either with or without
cause, at any time, by resolution adopted by the Board of Directors at any
regular meeting of the Board, or at any special meeting of the Board called for
that purpose, at which a quorum is present.
SECTION 5. RESIGNATIONS. Any officer may resign at any time by giving
written notice to the Chairman of the Board, if any, the President, the
Secretary or the Board of Directors. Any such resignation shall take effect upon
receipt of such notice or at any later time specified therein; and, unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
SECTION 6. VACANCIES. A vacancy in any office may be filled for the
unexpired portion of the term in the manner prescribed in these By-laws for
election or appointment to such office for such term.
SECTION 7. CHAIRMAN OF THE BOARD. The Chairman of the Board of
Directors if one be elected, shall preside, if present, at all meetings of the
Board of Directors and he shall have and perform such other duties as from time
to time may be assigned to him by the Board of Directors.
SECTION 8. VICE CHAIRMAN OF THE BOARD. The Vice Chairman of the Board
of Directors if one be elected, shall, in the absence of the Chairman, preside,
if present, at all meetings of the Board of Directors and he shall have and
perform such other duties as from time to time may be assigned to him by the
Board of Directors.
SECTION 9. PRESIDENT. The President shall be the chief executive
officer of the Corporation (unless such an officer shall be specifically
appointed by the Board of Directors) and shall have the general powers and
duties of supervision and management usually vested in the office of president
of a corporation. He shall preside at all meetings of the stockholders if
present thereat, and in the absence or non-election of a Chairman or Vice
Chairman of the Board of Directors, at all meetings of the Board of Directors,
and shall have general supervision, direction and control of the business of the
Corporation. Except as the Board of Directors shall authorize the execution
thereof in some other manner, he shall execute bonds, mortgages, and other
contracts on behalf of the Corporation, and shall cause the seal to be affixed
to any
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instrument requiring it and when so affixed the seal shall be attested by the
signature of the Secretary or the Treasurer.
SECTION 10. VICE PRESIDENTS. The Executive Vice Presidents, if any, the
Senior Vice President and General Counsel, and Senior Vice President, Human
Resources, if any, being the Vice Presidents of the Corporation, shall have such
powers and shall perform such duties as shall be assigned to such officers by
the President
SECTION 11. TREASURER. The Treasurer shall have charge and custody of,
and be responsible for, all funds and securities of the Corporation. He shall
exhibit at all reasonable times his books of account and records to any of the
Directors of the Corporation upon application during business hours at the
office of the Corporation where such books and records shall be kept; when
requested by the Board of Directors, he shall render a statement of the
condition of the finances of the Corporation at any meeting of the Board or at
the annual meeting of stockholders; he shall receive, and give receipt for,
moneys due and payable to the Corporation from any source whatsoever; in
general, he shall perform all the duties incident to the office of Treasurer and
such other duties as from time to time may be assigned to him by the Chairman of
the Board of Directors, the President or the Board of Directors. The Treasurer
shall give such bond, if any, for the faithful discharge of his duties as the
Board of Directors may require.
SECTION 12. SECRETARY. The Secretary, if present, shall act as
secretary at all meetings of the Board of Directors and of the stockholders and
keep the minutes thereof in a book or books to be provided for that purpose; he
shall see that all notices required to be given by the Corporation are duly
given and served; he shall have charge of the stock records of the Corporation;
he shall see that all reports, statements and other documents required by law
are properly kept and filed; and in general he shall perform all the duties
incident to the office of Secretary and such other duties as from time to time
may be assigned to him by the President or the Board of Directors.
SECTION 13. SALARIES. The salaries of the principal officers shall be
fixed from time to time by the Board of Directors, and the salaries of any other
officers may be fixed by the President.
ARTICLE V
INDEMNIFICATION
SECTION 1. RIGHT OF INDEMNIFICATION. Every person now or hereafter
serving as a director or officer of the Corporation and every such director or
officer serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, limited liability company,
partnership, joint venture, trust or other enterprise, shall be indemnified by
the Corporation in accordance with and to the fullest extent permitted by law
for the defense of, or in connection with, any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative.
SECTION 2. EXPENSES. Expenses incurred in defending a civil or criminal
action, suit or proceeding may be paid by the Corporation in advance of the
final disposition of such
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action, suit or proceeding as authorized by the Board of Directors in the
specific case upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount unless it shall ultimately be determined that he is
entitled to be indemnified by the Corporation as authorized in this Article V.
SECTION 3. AGREEMENTS. The Company is authorized to enter into
indemnification agreements with any of its directors or officers subject to the
provisions of this Article V.
SECTION 4. OTHER RIGHTS OF INDEMNIFICATION. The right of
indemnification herein provided shall not be deemed exclusive of any other
rights to which any such director or officer may now or hereafter be entitled
under any by-law, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his 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 director or officer and shall inure to the benefit of the
heirs, executors and administrators of such person.
SECTION 5. INDEMNIFICATION OF EMPLOYEES AND AGENTS. The rights of
indemnification provided to directors and officers in this Article V may be
applicable, at the discretion of the Company, to its employees and agents.
SECTION 6. INSURANCE. The Company is authorized to purchase insurance
on behalf of any person whom it is required or permitted to indemnify according
to this Article V.
ARTICLE VI
SHARES AND THEIR TRANSFER
SECTION 1. CERTIFICATE FOR STOCK. Every stockholder of the Corporation
shall be entitled to a certificate or certificates, to be in such form as the
Board of Directors shall prescribe, certifying the number of shares of the
capital stock of the Corporation owned by him. No certificate shall be issued
for partly paid shares.
SECTION 2. STOCK CERTIFICATE SIGNATURE. The certificates for such stock
shall be numbered in the order in which they shall be issued and shall be signed
by the President or any Vice President and the Secretary or Treasurer of the
Corporation and its seal shall be affixed thereto. If such certificate is
countersigned (1) by a transfer agent other than the Corporation or its
employee, or, (2) by a registrar other than the Corporation or its employee, the
signatures of such officers of the Corporation may be facsimiles. In case any
officer of the Corporation who has signed, or whose facsimile signature has been
placed upon, any such certificate shall have ceased to be such officer before
such certificate is issued, it may be issued by the Corporation with the same
effect as if he were such officer at the date of issue.
SECTION 3. STOCK LEDGER. A record shall be kept by the Secretary or by
any other officer, employee or agent designated by the Board of Directors of the
name of each person, firm or corporation holding capital stock of the
Corporation, the number of shares represented by, and the respective dates of,
each certificate for such capital stock, and in case of cancellation of any such
certificate, the respective dates of cancellation.
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SECTION 4. CANCELLATION. Every certificate surrendered to the
Corporation for exchange or registration of transfer shall be canceled, and no
new certificate or certificates shall be issued in exchange for any existing
certificate until such existing certificate shall have been so canceled, except,
subject to Section 7 of this Article VI, in cases provided for by applicable
law.
SECTION 5. REGISTRATIONS OF TRANSFERS OF STOCK. Registrations of
transfers of shares of the capital stock of the Corporation shall be made on the
books of the Corporation by the registered holder thereof, or by his attorney
thereunto authorized by power of attorney duly executed and filed with the
Secretary of the Corporation or with a transfer clerk or a transfer agent
appointed as in Section 6 of this Article VI provided, and on surrender of the
certificate or certificates for such shares properly endorsed and the payment of
all taxes thereon. The person in whose name shares of stock stand on the books
of the Corporation shall be deemed the owner thereof for all purposes as regards
the Corporation; PROVIDED, HOWEVER, that whenever any transfer of shares shall
be made for collateral security, and not absolutely, it shall be so expressed in
the entry of the transfer if, when the certificates are presented to the
Corporation for transfer, both the transferor and the transferee request the
Corporation to do so.
SECTION 6. REGULATIONS. The Board of Directors may make such rules and
regulations as it may deem expedient, not inconsistent with the Certificate of
Incorporation or these By- laws, concerning the issue, transfer and registration
of certificates for shares of the stock of the Corporation. It may appoint, or
authorize any principal officer or officers to appoint, one or more transfer
clerks or one or more transfer agents and one or more registrars, and may
require all certificates of stock to bear the signature or signatures of any of
them.
SECTION 7. LOST, STOLEN, DESTROYED OR MUTILATED CERTIFICATES. Before
any certificates for stock of the Corporation shall be issued in exchange for
certificates which shall become mutilated or shall be lost, stolen or destroyed,
proper evidence of such loss, theft, mutilation or destruction shall be procured
for the Board of Directors, if it so requires.
SECTION 8. RECORD DATES. For the purpose of determining the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board of Directors may fix, in advance, a date as a
record date for any such determination of stockholders. Such record date shall
not be more than sixty or less than ten days before the date of such meeting, or
more than sixty days prior to any other action. If a record date is not fixed by
the Board of Directors as aforesaid, (i) the date for determination of
stockholders entitled to notice of or to vote at a meeting of stockholders shall
be the close of business on the day next preceding the day on which notice is
given, or if no notice is given, the day next preceding the day on which the
meeting is held, and (ii) the record date for determining stockholders for any
purpose other than that specified in clause (i) shall be the close of business
on the day on which the resolution of the Board of Directors relating thereto is
adopted.
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ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 1. CORPORATE SEAL. The Board of Directors shall provide a
corporate seal, which shall be in the form of a circle and shall bear the name
of the Corporation and words and figures showing that it was incorporated in the
State of Delaware in the year 1998. The Secretary shall be the custodian of the
seal. The Board of Directors may authorize a duplicate seal to be kept and used
by any other officer.
SECTION 2. VOTING OF STOCKS OWNED BY THE CORPORATION. The Board of
Directors may authorize any person on behalf of the Corporation to attend, vote
and grant proxies to be used at any meeting of stockholders of any corporation
(except the Corporation) in which the Corporation may hold stock.
SECTION 3. DIVIDENDS. Subject to the provisions of the Certificate of
Incorporation, the Board of Directors may, out of funds legally available
therefor, at any regular or special meeting declare dividends upon the capital
stock of the Corporation as and when they deem expedient. Before declaring any
dividend there may be set apart out of any funds of the Corporation available
for dividends such sum or sums as the Directors from time to time in their
discretion deem proper for working capital or as a reserve fund to meet
contingencies or for equalizing dividends or for such other purposes as the
Board of Directors shall deem conducive to the interests of the Corporation.
ARTICLE VIII
AMENDMENTS
These By-laws of the Corporation may be altered, amended or repealed by
the Board of Directors at (a) any regular or special meeting of the Board of
Directors, PROVIDED, HOWEVER, that the Board of Directors may alter, amend or
repeal the provisions of these By-laws relating to the number of Directors only
if all the members of the Board of Directors consent thereto in writing, or (b)
by the affirmative vote of the holders of record of a majority of the issued and
outstanding stock of the Corporation (i) present in person or by proxy at a
meeting of holders of such stock and entitled to vote thereon or (ii) by a
consent in writing in the manner contemplated in Section 9 of Article II,
PROVIDED, HOWEVER, that notice of the proposed alteration, amendment or repeal
is contained in the notice of such meeting. By-laws, whether made or altered by
the stockholders or by the Board of Directors, shall be subject to alteration or
repeal by the stockholders as in this Article VIII above provided.
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