EXHIBIT 3.2
BYLAWS
OF
U.S. AUDIOTEX CORPORATION
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of U.S. Audiotex
Corporation (the "Corporation") in the State of Delaware shall be at 1209 Orange
Street, in the City of Wilmington, County of New Castle, 19801 and its
registered agent at such address shall be The Corporation Trust Company, or such
other office or agent as the Board of Directors of the Corporation (the "Board")
shall from time to time select.
Section 2. Other Offices. The Corporation may also have an office or offices,
and keep the books and records of the Corporation, except as may otherwise be
required by law, at such other place or places, either within or without the
State of Delaware, as the Board may from time to time determine or the business
of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meeting. All meetings of the stockholders of the
Corporation shall be held at the office of the Corporation or at such other
places, within or without the State of Delaware, as may from time to time be
fixed by the Board.
Section 2. Annual Meetings. The annual meeting of the stockholders for the
election of directors and for the transaction of such other business as may
properly come before the meeting shall be held on such date and at such hour as
shall from time to time be fixed by the Board. Any previously scheduled annual
meeting of the stockholders may be postponed by action of the Board taken prior
to the time previously scheduled for such annual meeting of stockholders.
Section 3. Special Meetings. Except as otherwise required by law or the
Certificate of Incorporation of the Corporation (the "Certificate"), special
meetings of the stockholders for any purpose or purposes may be called by the
Chairman of the Board, the Chief Executive Officer or a majority of the entire
Board. 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. Except as otherwise provided by law, written
notice of each meeting of the stockholders, whether annual or special, shall be
given, either by personal delivery or by mail, not less than 10 nor more than 60
days before the date of the meeting to each stockholder of record entitled to
notice of the meeting. If mailed, such notice shall be deemed 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. Each such notice shall state the place, date and hour of the
meeting, and the purpose or purposes for which the meeting is called. Notice of
any meeting of stockholders shall not be required to be given to any stockholder
who shall attend such meeting in person or by proxy without protesting, prior to
or at the commencement of the meeting, the lack of proper notice to such
stockholder, or who shall sign a written waiver of notice thereof, whether
before or after such meeting. Notice of adjournment of a meeting of stockholders
need not be given if the time and place to which it is adjourned are announced
at such meeting, unless the adjournment is for more than 30 days or, after
adjournment, a new record date is fixed for the adjourned meeting.
Section 5. Quorum. Except as otherwise provided by law or by the Certificate,
the holders of a majority of the votes entitled to be cast by the stockholders
entitled to vote generally, present in person or by proxy, shall constitute a
quorum for the transaction of business at any meeting of the stockholders;
provided, however, that in the case of any vote to be taken by classes, the
holders of a majority of the votes entitled to be cast by the stockholders of a
particular class shall constitute a quorum for the transaction of business by
such class.
Section 6. Adjournments. The chairman of the meeting or the holders of a
majority of the votes entitled to be cast by the stockholders who are present in
person or by proxy may adjourn the meeting from time to time whether or not a
quorum is present. In the event that a quorum does not exist with respect to any
vote to be taken by a particular class, the chairman of the meeting or the
holders of a majority of the votes entitled to be cast by the stockholders of
such class who are present in person or by proxy may adjourn the meeting with
respect to the vote(s) to be taken by such class. At such adjourned meeting at
which a quorum may be present, any business may be transacted which might have
been transacted at the meeting as originally called.
Section 7. Order of Business.
(a) At each meeting of the stockholders, the Chairman of the Board or, in the
absence of the Chairman of the Board, the Chief Executive Officer or, in
the absence of the Chief Executive Officer, such person as shall be
selected by the Board shall act as chairman of the meeting. The order of
business at each such meeting shall be as determined by the chairman of the
meeting. The chairman of the meeting shall have the right and authority to
prescribe such rules, regulations and procedures and to do all such acts
and things as are necessary or desirable for the proper conduct of the
meeting, including, without limitation, the establishment of procedures for
the maintenance of order and safety, limitations on the time allotted to
questions or comments on the affairs of the Corporation, restrictions on
entry to such meeting after the time prescribed for the commencement
thereof, and the opening and closing of the voting polls.
(b) At any annual meeting of stockholders, only such business shall be
conducted as shall have been brought before the annual meeting (i) by or at
the direction of the
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chairman of the meeting, (ii) pursuant to the notice provided for in
Section 4 of this Article II or (iii) by any stockholder who is a holder of
record at the time of the giving of such notice provided for in this
Section 7, who is entitled to vote at the meeting and who complies with the
procedures set forth in this Section 7.
(c) For business properly to be brought before an annual meeting by a
stockholder, the stockholder must have given timely notice thereof in
proper written form to the Secretary of the Corporation (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 90 days prior to the date of an annual meeting of stockholders. To be
in proper written form, a stockholder's notice to the Secretary shall set
forth in writing as to each matter the stockholder proposes to bring before
the annual meeting: (i) a brief description of the business desired to be
brought before the annual meeting and the reasons for conducting such
business at the annual meeting; (ii) the name and address of the
stockholder proposing such business and all persons or entities acting in
concert with the stockholder; (iii) the class and number of shares of the
Corporation which are beneficially owned by the stockholder and all persons
or entities acting in concert with such stockholder; and (iv) any material
interest of the stockholder in such business. The foregoing notice
requirements shall be deemed satisfied by a stockholder if the stockholder
has notified the Corporation of his or her intention to present a proposal
at an annual meeting and such stockholder's proposal has been included in a
proxy statement that has been prepared by management of the Corporation to
solicit proxies for such annual meeting; provided, however, that if such
stockholder does not appear or send a qualified representative to present
such proposal at such annual meeting, the Corporation need not present such
proposal for a vote at such meeting, notwithstanding that proxies in
respect of such vote may have been received by the Corporation.
Notwithstanding anything in the bylaws to the contrary, no business shall
be conducted at any annual meeting except in accordance with the procedures
set forth in this Section 7. The chairman of an annual meeting shall, if
the facts warrant, determine that business was not properly brought before
the annual meeting in accordance with the provisions of this Section 7,
and, if the chairman should so determine, the chairman shall so declare to
the annual meeting and any such business not properly brought before the
annual meeting shall not be transacted.
Section 8. List of Stockholders. It shall be the duty of the Secretary or other
officer who has charge of the stock ledger to prepare and make, at least 10 days
before each 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 such
stockholder's name. Such list shall be produced and kept available at the times
and places required by law.
Section 9. Voting.
(a) Except as otherwise provided by law or by the Certificate, each stockholder
of record of any class or series of capital stock of the Corporation shall
be entitled at each meeting of stockholders to such number of votes for
each share of such stock as may be fixed in the Certificate or in the
resolution or resolutions adopted by the Board providing for the issuance
of such stock, registered in such stockholder's name on the books of the
Corporation:
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(i) on the date fixed pursuant to Section 6 of Article VII of these bylaws
as the record date for the determination of stockholders entitled to
notice of and to vote at such meeting; or
(ii) if no such record date shall have been so fixed, then at the close of
business on the day next preceding the day on which notice of such
meeting is given, or, if notice is waived, at the close of business on
the day next preceding the day on which the meeting is held.
(b) Each stockholder entitled to vote at any meeting of stockholders may
authorize not in excess of three persons to act for such stockholder by
proxy. Any such proxy shall be delivered to the secretary of such meeting
at or prior to the time designated for holding such meeting. No such proxy
shall be voted or acted upon after three years from its date, unless the
proxy provides for a longer period.
(c) At each meeting of the stockholders, all corporate actions to be taken by
vote of the stockholders (except as otherwise required by law and except as
otherwise provided in the Certificate or these bylaws) shall be authorized
by a majority of the votes cast by the stockholders entitled to vote
thereon who are present in person or represented by proxy, and where a
separate vote by class is required, a majority of the votes cast by the
stockholders of such class who are present in person or represented by
proxy shall be the act of such class.
(d) Unless required by law or determined by the chairman of the meeting to be
advisable, the vote on any matter, including the election of directors,
need not be by written ballot. In the case of a vote by written ballot,
each ballot shall be signed by the stockholder voting, or by such
stockholder' s proxy.
Section 10. Inspectors. The chairman of the meeting shall appoint one or more
inspectors to act at any meeting of stockholders. Such inspectors shall perform
such duties as shall be specified by the chairman of the meeting. Inspectors
need not be stockholders. No director or nominee for the office of director
shall be appointed such inspector.
ARTICLE III
BOARD OF DIRECTORS
Section 1. General Powers. The business and affairs of the Corporation shall be
managed by or under the direction of the Board, which may exercise all such
powers of the Corporation and do all such lawful acts and things as are not by
law or by the Certificate directed or required to be exercised or done by the
stockholders.
Section 2. Number, Qualification and Election.
(a) Except as otherwise fixed by or pursuant to the provisions of Article V of
the Certificate relating to the rights of the holders of any class or
series of stock having preference over the common stock of the corporation
as to dividends or upon liquidation, the number of directors of the
Corporation shall be determined from time to time by the Board by
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the affirmative vote of directors constituting at least a majority of the
entire Board; provided, however, that the number thereof may not be less
than three nor more than nine and shall be fixed initially by the sole
incorporator of the Corporation.
(b) Each director shall be at least 21 years of age. Directors need not be
stockholders of the Corporation.
(c) In any election of directors held at a meeting of stockholders, the persons
receiving a plurality of the votes cast by the stockholders entitled to
vote thereon at such meeting who are present or represented by proxy, up to
the number of directors to be elected in such election, shall be deemed
elected.
Section 3. Notification of Nomination. Subject to the rights of the holders of
any class or series of stock having a preference over the common stock as to
dividends or upon liquidation, nominations for the election of directors may be
made by the Board or by any stockholder who is a stockholder of record at the
time of giving of the notice of nomination provided for in this Section 3 of
this Article III and who is entitled to vote for the election of directors. Any
stockholder of record entitled to vote for the election of directors at a
meeting may nominate persons for election as directors only if timely 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.
To be timely, a stockholder's notice must be delivered to or mailed and received
at the principal executive offices of the Corporation (i) with respect to an
election to be held at an annual meeting of stockholders, not less than 90 days
prior to the date of such annual meeting and (ii) with respect to an election to
be held at a special meeting of stockholders for the election of directors,
within 15 days following the public announcement of the date of such special
meeting. Each such notice shall set forth: (a) the name and address of the
stockholder who intends to make the nomination, of all persons or entities
acting in concert with the stockholder, 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 entities acting in
concert with the stockholder (naming such person or entities) pursuant to which
the nomination or nominations are to be made by the stockholder; (d) such other
information regarding each nominee proposed by the 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, whether or not the Corporation is
then subject to Section 14 of the Securities Exchange Act of 1934, as amended;
(e) the class and number of shares of the Corporation that are beneficially
owned by the stockholder and all persons or entities acting in concert with the
stockholder; and (f) the consent of each nominee to being named in a proxy
statement as nominee and to serve as a director of the Corporation if so
elected. The chairman of the meeting may refuse to acknowledge the nomination of
any person not made after compliance with the foregoing procedure. Only such
persons who are nominated in accordance with the procedures set forth in this
Section 3 of this Article III shall be eligible to serve as directors of the
Corporation.
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Section 4. Quorum and Manner of Acting. Except as otherwise provided by law,
the Certificate or these bylaws, a majority of the entire Board shall constitute
a quorum for the transaction of business at any meeting of the Board, and,
except as so provided, the vote of a majority of the directors present at any
meeting at which a quorum is present shall be the act of the Board. The chairman
of the meeting or a majority of the directors present may adjourn the meeting to
another time and place whether or not a quorum is present. At any adjourned
meeting at which a quorum is present, any business may be transacted which might
have been transacted at the meeting as originally called.
Section 5. Place of Meeting. The Board may hold its meetings at such place or
places within or without the State of Delaware as the Board may from time to
time determine or as shall be specified or fixed in the respective notice or
waivers of notice thereof.
Section 6. Regular Meetings. Regular meetings of the Board shall be held at
such times and places as the Chairman of the Board or the Board shall from time
to time by resolution determine. If any day fixed for a regular meeting shall be
a legal holiday under the laws of the place where the meeting is to be held, the
meeting which would otherwise be held on that day shall be held at the same hour
on the next succeeding business day.
Section 7. Special Meetings. Special meetings of the Board shall be held
whenever called by the Chairman of the Board or by a majority of the directors.
Section 8. Notice of Meetings. Notice of regular meetings of the Board or of
any adjourned meeting thereof need not be given. Notice of each special meeting
of the Board shall be given by overnight delivery service or mailed to each
director, in either case addressed to such director at such director's residence
or usual place of business, at least two days before the day on which the
meeting is to be held or shall be sent to such director at such place by
telegraph or telecopy or be given personally or by telephone, not later than the
day before the meeting is to be held, but notice need not be given to any
director who shall, either before or after the meeting, submit a signed waiver
of such notice or who shall attend such meeting without protesting, prior to or
at its commencement, the lack of notice to such director. Every such notice
shall state the time and place but need not state the purpose of the meeting.
Section 9. Rules and Regulations. The Board may adopt such rules and
regulations not inconsistent with the provisions of law, the Certificate or
these bylaws for the conduct of its meetings and management of the affairs of
the Corporation as the Board may deem proper.
Section 10. Participation in Meeting by Means of Communication Equipment. Any
one or more members of the Board or any committee thereof may participate in any
meeting of the Board or of any 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 in a meeting shall
constitute presence in person at such meeting.
Section 11. Action Without Meeting. Any action required or permitted to be
taken at any meeting of the Board or any committee thereof may be taken without
a meeting if
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all of the members of the Board or of any such committee consent thereto in
writing and the writing or writings are filed with the minutes or proceedings of
the Board or of such committee.
Section 12. Resignations. Any director of the Corporation may at any time
resign by giving written notice to the Board, the Chairman of the Board, the
Chief Executive Officer, the President or the Secretary. Such resignation shall
take effect at the time specified therein or, if the time be not specified
therein, upon receipt thereof; and, unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
Section 13. Removal of Directors. Directors may be removed only as provided in
Section 4 of Article VII of the Certificate.
Section 14. Vacancies. Subject to the rights of the holders of any class or
series of stock having a preference over the common stock of the Corporation as
to dividends or upon liquidation, any vacancies on the Board resulting from
death, resignation, removal or other cause shall only be filled by the Board by
the affirmative vote of a majority of the remaining directors then in office,
even though less than a quorum of the Board, 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, 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 Section 3 of Article II of these bylaws. Any director
elected in accordance with the preceding sentence of this Section 14 of this
Article III shall hold office for the remainder of the full term of the class of
directors in which the new directorship was created or the vacancy occurred and
until such director's successor shall have been elected and qualified.
Section 15. Compensation. Each director, in consideration of such person
serving as a director, shall be entitled to receive from the Corporation such
amount per annum and such fees for attendance at meetings of the Board or of
committees of the Board, or both, as the Board shall from time to time
determine. In addition, each director shall be entitled to receive from the
Corporation reimbursement for the reasonable expenses incurred by such person in
connection with the performance of such person's duties as a director. Nothing
contained in this Section 15 of this Article III shall preclude any director
from serving the Corporation or any of its subsidiaries in any other capacity
and receiving proper compensation therefor.
ARTICLE IV
COMMITTEES OF THE BOARD OF DIRECTORS
Section 1. Establishment of Committees of the Board of Directors; Election of
Members of Committees of the Board of Directors; Functions of Committees of the
Board of Directors. The Board may, in accordance with and subject to the General
Corporation Law of the State of Delaware, from time to time establish committees
of the Board to exercise such powers and authorities of the Board, and to
perform such other functions, as the Board may from time to time determine.
Section 2. Procedure; Meetings; Quorum. Regular meetings of committees of the
Board, of which no notice shall be necessary, may be held at such times and
places as shall
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be fixed by resolution adopted by a majority of the members thereof. Special
meetings of any committee of the Board shall be called at the request of a
majority of the members thereof. Notice of each special meeting of any committee
of the Board shall be given by overnight delivery service or mailed to each
member, in either case addressed to such member at such member's residence or
normal place of business, at least two days before the day on which the meeting
is to be held or shall be sent to such members at such place by telegraph or
telecopy or be given personally or by telephone, not later than the day before
the meeting is to be held, but notice need not be given to any member who shall,
either before or after the meeting, submit a signed waiver of such notice or who
shall attend such meeting without protesting, prior to it or at its
commencement, the lack of such notice to such member. Any special meeting of any
committee of the Board shall be a legal meeting without any notice thereof
having been given, if all the members thereof shall be present thereat. Notice
of any adjourned meeting of any committee of the Board need not be given. Any
committee of the Board may adopt such rules and regulations not inconsistent
with the provisions of law, the Certificate or these bylaws for the conduct of
its meetings as such committee of the Board may deem proper. A majority of the
members of any committee of the Board shall constitute a quorum for the
transaction of business at any meeting, and the vote of a majority of the
members thereof present at any meeting at which a quorum is present shall be the
act of such committee. Each committee of the Board shall keep written minutes of
its proceedings and shall report on such proceedings to the Board.
ARTICLE V
OFFICERS
Section 1. Number; Term of Office. The officers of the Corporation shall be
such officers as the Board may from time to time determine, which may include a
Chairman of the Board, Chief Executive Officer, President, Chief Financial
Officer, General Counsel and one or more Vice Presidents (including, without
limitation, Assistant, Executive and Senior Vice Presidents) and a Treasurer,
Secretary and Controller and such other officers or agents with such titles and
such duties as the Board may from time to time determine, each to have such
authority, functions or duties as provided in these bylaws or as the Board may
from time to time determine, and each to hold office for such term as may be
prescribed by the Board and until such person's successor shall have been chosen
and shall qualify, or until such person's death or resignation, or until such
person's removal in the manner hereinafter provided. One person may hold the
offices and perform the duties of any two or more of said officers; provided,
however, that no officer shall execute, acknowledge or verify any instrument in
more than one capacity if such instrument is required by law, the Certificate or
these bylaws to be executed, acknowledged or verified by two or more officers.
The Board may from time to time authorize any officer to appoint and remove any
such other officers and agents and to prescribe their powers and duties. The
Board may require any officer or agent to give security for the faithful
performance of such person's duties.
Section 2. Removal. Any officer may be removed, either with or without cause,
by the Board at any meeting thereof or, except in the case of any officer
elected by the Board, by any superior officer upon whom such power may be
conferred by the Board.
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Section 3. Resignation. Any officer may resign at any time by giving notice to
the Board, the Chief Executive Officer or the Secretary. Any such resignation
shall take effect at the date of receipt of such notice or at any later date
specified therein; and, unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
Section 4. Vacancies. A vacancy in any office because of death, resignation,
removal or any other cause may be filled for the unexpired portion of the term
in the manner prescribed in these bylaws for election to such office.
Section 5. Chairman of the Board; Powers and Duties. The Chairman of the Board
shall preside at all meetings of the stockholders and the Board at which he or
she is present. Unless otherwise precluded from doing so by these bylaws, the
Chairman of the Board may be a member of the committees of the Board. The
Chairman of the Board shall act as chairman at all meetings of the stockholders
at which he or she is present unless he or she elects that the Chief Executive
Officer shall so preside. The Chairman of the Board may be designated by the
Board as an officer of the Company and may be elected by the Board as the Chief
Executive Officer. The Chairman of the Board shall perform all duties as may be
assigned to him or her by the Board of Directors. In case of the absence or
disability of the Chairman of the Board or a vacancy in the office, the Chief
Executive Officer or, if none, the President shall exercise all the powers and
perform all the duties of the Chairman of the Board.
Section 6. Chief Executive Officer; Powers and Duties. Subject to the control
of the Board, the Chief Executive Officer shall supervise and direct generally
all the business and affairs of the Corporation. Any document may be signed by
the Chief Executive Officer or any other person who may be thereunto authorized
by the Board or the Chief Executive Officer. The Chief Executive Officer may
appoint such assistant officers as are deemed necessary.
Section 7. President, Executive Vice Presidents, Senior Vice Presidents and
Vice Presidents; Powers and Duties. The President shall be the chief operating
officer of the Corporation. The President and each Executive Vice President,
each Senior Vice President, and each Vice President shall have such powers and
perform such duties as may be assigned by the Board of Directors or the Chief
Executive Officer.
Section 8. Secretary and Assistant Secretaries; Powers and Duties. The
Secretary shall attend all meetings of the stockholders and the Board and shall
keep the minutes for such meetings in one or more books provided for that
purpose. The Secretary shall be custodian of the corporate records, except those
required to be in the custody of the Treasurer or the Controller, shall keep the
seal of the Corporation, and shall execute and affix the seal of the Corporation
to all documents duly authorized for execution under seal on behalf of the
Corporation, and shall perform all of the duties incident to the office of
Secretary, as well as such other duties as may be assigned by the Chief
Executive Officer or the Board.
The Assistant Secretaries shall perform such of the Secretary's duties
as the Secretary shall from time to time direct. In case of the absence or
disability of the Secretary or a vacancy in the office, an Assistant Secretary
designated by the Chief Executive Officer or by the Secretary, if the office is
not vacant, shall perform the duties of the Secretary.
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Section 9. Chief Financial Officer; Powers and Duties. The Chief Financial
Officer shall be responsible for maintaining the financial integrity of the
Corporation, shall prepare the financial plans for the Corporation, and shall
monitor the financial performance of the Corporation and its subsidiaries, as
well as performing such other duties as may be assigned by the Chief Executive
Officer or the Board.
Section 10. Treasurer and Assistant Treasurers; Powers and Duties. The
Treasurer shall have care and custody of the funds and securities of the
Corporation, shall deposit such funds in the name and to the credit of the
Corporation with such depositories as the Treasurer shall approve, shall
disburse the funds of the Corporation for proper expenses and dividends, and as
may be ordered by the Board, taking proper vouchers for such disbursements. The
Treasurer shall perform all of the duties incident to the office of Treasurer,
as well as such other duties as may be assigned by the Chief Executive Officer
or the Board.
The Assistant Treasurers shall perform such of the Treasurer's duties
as the Treasurer shall from time to time direct. In case of the absence or
disability of the Treasurer or a vacancy in the office, an Assistant Treasurer
designated by the Chief Executive Officer or by the Treasurer, if the office is
not vacant, shall perform the duties of the Treasurer.
Section 11. General Counsel; Powers and Duties. The General Counsel shall be a
licensed attorney at law and shall be the chief legal officer of the
Corporation. The General Counsel shall have such power and exercise such
authority and provide such counsel to the Corporation as deemed necessary or
desirable to enforce the rights and protect the property and integrity of the
Corporation, shall also have the power, authority, and responsibility for
securing for the Corporation all legal advice, service, and counseling, and
shall perform all of the duties incident to the office of General Counsel, as
well as such other duties as may be assigned by the Chief Executive Officer or
the Board.
Section 12. Controller and Assistant Controllers; Powers and Duties. The
Controller shall be the chief accounting officer of the Corporation and shall
keep and maintain in good and lawful order all accounts required by law and
shall have sole control over, and ultimate responsibility for, the accounts and
accounting methods of the Corporation and the compliance of the Corporation with
all systems of accounts and accounting regulations prescribed by law. The
Controller shall audit, to such extent and at such times as may be required by
law or as the Controller may think necessary, all accounts and records of
corporate funds or property, by whomsoever kept, and for such purposes shall
have access to all such accounts and records. The Controller shall make and sign
all necessary and proper accounting statements and financial reports of the
Corporation, and shall perform all of the duties incident to the office of
Controller, as well as such other duties as may be assigned by the Chief
Executive Officer or the Board.
The Assistant Controllers shall perform such of the Controller's
duties as the Controller shall from time to time direct. In case of the absence
or disability of the Controller or a vacancy in the office, an Assistant
Controller designated by the Chief Executive Officer or the Controller, if the
office is not vacant, shall perform the duties of the Controller.
Section 13. Salaries. The salaries of all officers of the Corporation shall be
fixed by or in the manner provided by the Board. If authorized by a resolution
of the Board, the
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salary of any officer other than the Chief Executive Officer may be fixed by the
Chief Executive Officer or a Committee of the Board. No officer shall be
disqualified from receiving a salary by reason of also being a director of the
Corporation.
ARTICLE VI
INDEMNIFICATION
Section 1. Scope of Indemnification.
(a) The Corporation shall indemnify an indemnified representative against any
liability incurred in connection with any proceeding in which the
indemnified representative may be involved as a party or otherwise, by
reason of the fact that such person is or was serving in an indemnified
capacity, except to the extent that any such indemnification against a
particular liability is expressly prohibited by applicable law or where a
judgment or other final adjudication adverse to the indemnified
representative establishes, or where the Corporation determines, that his
or her acts or omissions (i) were in breach of such person's duty of
loyalty to the Corporation or its stockholders, (ii) were not in good faith
or involved intentional misconduct or a knowing violation of law, or (iii)
resulted in receipt by such person of an improper personal benefit. The
rights granted by this Article shall not be deemed exclusive of any other
rights to which those seeking indemnification, contribution, or advancement
of expenses may be entitled under any statute, certificate of
incorporation, agreement, contract of insurance, vote of stockholders or
disinterested directors, or otherwise. The rights of indemnification and
advancement of expenses provided by or granted pursuant to this Article VI
shall continue as to a person who has ceased to be an indemnified
representative in respect of matters arising prior to such time and shall
inure to the benefit of the heirs, executors, administrators and personal
representatives of such a person.
(b) If an indemnified representative is not entitled to indemnification with
respect to a portion of any liabilities to which such person may be
subject, the Corporation shall nonetheless indemnify such indemnified
representative to the maximum extent for the remaining portion of the
liabilities.
(c) The termination of a proceeding by judgment, order, settlement, conviction,
or upon a plea of nolo contendere or its equivalent shall not, of itself,
create a presumption that the indemnified representative is not entitled to
indemnification.
(d) To the extent permitted by law, the payment of indemnification provided for
by this Article VI, including the advancement of expenses pursuant to
Section 2 of this Article VI, with respect to proceedings other than those
brought by or in the right of the Corporation, shall be subject to the
conditions that the indemnified representative shall give the Corporation
prompt notice of any proceeding, that the Corporation shall have complete
charge of the defense of such proceeding and the right to select counsel
for the indemnified representative, and that the indemnified representative
shall assist and cooperate fully in all matters respecting the proceeding
and its defense or settlement. The Corporation may waive any or all of the
conditions set forth in the preceding sentence. Any such waiver shall be
applicable only to the specific payment for which the waiver is made and
shall not in any way obligate the Corporation to grant such waiver at any
future time. In the event of a conflict of interest between the
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indemnified representative and the Corporation that would disqualify the
Corporation's counsel from representing the indemnified representative
under the rules of professional conduct applicable to attorneys, it shall
be the policy of the Corporation to waive any or all of the foregoing
conditions subject to such limitations or conditions as the Corporation
shall deem to be reasonable in the circumstances.
(e) For purposes of this Article:
(i) "indemnified capacity" means any and all past, present, or future
services by an indemnified representative in one or more capacities as
a director, officer, employee, or agent of the Corporation or, at the
request of the Corporation, as a director, partner, member, officer,
employee, agent, fiduciary, or trustee of another corporation,
partnership, joint venture, trust, employee benefit plan, or other
entity or enterprise; any indemnified representative serving an
affiliate of the Corporation in any capacity shall be deemed to be
doing so at the request of the Corporation;
(ii) an "affiliate of the Corporation" means an entity that directly or
indirectly, through one or more intermediaries, controls, or is
controlled by, or is under common control with, the Corporation;
(iii) "indemnified representative" means any and all directors, officers,
and employees of the Corporation and any other person designated as an
indemnified representative by the Board;
(iv) "liability" means any damage, judgment, amount paid in settlement,
fine, penalty, punitive damage, excise tax assessed with respect to an
employee benefit plan, or cost or expense of any nature (including,
without limitation, expert witness fees, costs of investigation,
litigation and appeal costs, attorneys' fees, and disbursements); and
(v) "proceeding" means any threatened, pending, or completed action, suit,
appeal, or other proceeding at any nature, whether civil, criminal,
administrative, or investigative, whether formal or informal, whether
external or internal to the Corporation, and whether brought by or in
the right of the Corporation, a class of its security holders or
otherwise.
Section 2. Advancing Expenses. All reasonable expenses incurred in good faith
by an indemnified representative in advance of the final disposition of a
proceeding described in Section 1 of this Article VI shall be advanced to the
indemnified representative by the Corporation. Before making any such advance
payment of expenses, the Corporation shall receive an undertaking by or on
behalf of the indemnified representative to repay such amount if it shall
ultimately be determined that such indemnified representative is not entitled to
be indemnified by the Corporation pursuant to this Article VI. No advance shall
be made by the Corporation if a determination is reasonably and promptly made by
a majority vote of disinterested directors, even if the disinterested directors
constitute less than a quorum, or (if such a quorum is not obtainable or, even
if obtainable, a quorum of disinterested directors so directs) by independent
legal counsel in a written opinion, that, based upon the facts known to the
Board or counsel at the time such determination is made, the indemnified
representative has
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acted in such a manner as to permit or require the denial of indemnification
pursuant to the provisions of Section 1 of this Article VI.
ARTICLE VII
CAPITAL STOCK
Section 1. Share Ownership.
(a) Holders of shares of stock of each class of the Corporation shall be
recorded on the books of the Corporation and ownership of such stock shall
be evidenced by a certificate or other form as shall be approved by the
Board. Certificates representing shares of stock of each class, if any,
shall be signed by, or in the name of, the Corporation by the Chairman of
the Board or the President, any Vice President and by the Secretary or any
Assistant Secretary or the Treasurer or any Assistant Treasurer of the
Corporation, and sealed with the seal of the Corporation, which may be a
facsimile thereof. Any or all such signatures may be facsimiles if
countersigned by a transfer agent or registrar. Although any officer,
transfer agent or registrar whose manual or facsimile signature is affixed
to such a certificate ceases to be such officer, transfer agent or
registrar before such certificate has been issued, it may nevertheless be
issued by the Corporation with the same effect as if such officer, transfer
agent or registrar were still such at the date of its issue.
(b) The stock ledger and blank share certificates shall be kept by the
Secretary or by a transfer agent or by a registrar or by any other officer
or agent designated by the Board.
Section 2. Transfer of Shares. Transfers of shares of stock of each class of
the Corporation shall be made only on the books of the Corporation by the holder
thereof, or by such holder's attorney thereunto authorized by a power of
attorney duly executed and filed with the Secretary or a transfer agent for such
stock, if any, and on surrender of the certificate or certificates, if any, for
such shares properly endorsed or accompanied by a duly executed stock transfer
power (or by proper evidence of succession, assignment or authority to transfer)
and the payment of any taxes thereon; provided, however, that the Corporation
shall be entitled to recognize and enforce any lawful restriction on transfer.
The person in whose name shares are registered 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, and written notice thereof shall be
given to the Secretary or to such transfer agent, such fact shall be stated in
the entry of the transfer. No transfer of shares shall be valid as against the
Corporation, its stockholders and creditors for any purpose, except to render
the transferee liable for the debts of the Corporation to the extent provided by
law, until it shall have been entered in the stock records of the Corporation by
an entry showing from and to whom transferred.
Section 3. Registered Stockholders and Addresses of Stockholders.
(a) The Corporation shall be entitled to recognize the exclusive right of a
person registered on its records as the owner of shares of stock to receive
dividends and to vote as such owner, shall be entitled to hold liable for
calls and assessments a person registered on its
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records as the owner of shares of stock, and shall not be bound to
recognize any equitable or other claim to or interest in such share or
shares of stock on the part of any other person, whether or not it shall
have express or other notice thereof, except as otherwise provided by the
laws of Delaware.
(b) Each stockholder shall designate to the Secretary or transfer agent of the
Corporation an address at which notices of meetings and all other corporate
notices may be delivered or mailed to such person, and, if any stockholder
shall fail to designate such address, corporate notices may be delivered to
such person by mail directed to such person at such person's post office
address, if any, as the same appears on the stock record books of the
Corporation or at such person's last known post office address.
Section 4. Lost, Destroyed and Mutilated Certificates. The Corporation may
issue to any holder of shares of stock the certificate for which has been lost,
stolen, destroyed or mutilated a new certificate or certificates for shares,
upon the surrender of the mutilated certificate or, in the case of loss, theft
or destruction of the certificate, upon satisfactory proof of such loss, theft
or destruction. The Board, or a committee designated thereby, or the transfer
agents and registrars for the stock, may, in their discretion, require the owner
of the lost, stolen or destroyed certificate, or such person's legal
representative, to give the Corporation a bond in such sum and with such surety
or sureties as they may direct to indemnify the Corporation and said transfer
agents and registrars against any claim that may be made on account of the
alleged loss, theft or destruction of any such certificate or the issuance of
such new certificate.
Section 5. Regulations. The Board may make such additional rules and
regulations as it may deem expedient concerning the issue and transfer of shares
of stock of each class of the Corporation and may make such rules and take such
action as it may deem expedient concerning the issue of certificates in lieu of
certificates claimed to have been lost, destroyed, stolen or mutilated.
Section 6. Fixing Date for Determination of Stockholders of Record. In order
that the Corporation may determine the stockholders entitled to notice of or to
vote at any meeting of stockholders or any adjournment thereof, or entitled to
receive payment of any dividend or other distribution or allotment or 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
may fix, in advance, a record date, which shall not be more than 60 nor less
than 10 days before the date of such meeting, nor more than 60 days prior to any
other action. A determination of stockholders entitled to notice of or to vote
at a meeting of the stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board may fix a new record date for the adjourned
meeting.
Section 7. Transfer Agents and Registrars. The Board may appoint, or authorize
any officer or officers to appoint, one or more transfer agents and one or more
registrars.
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ARTICLE VIII
SEAL
The Board shall provide a corporate seal, which shall be in the form of a circle
and shall bear the full name of the Corporation and the words and figures of
"Corporate Seal Delaware," or such other words or figures as the Board may
approve and adopt. The seal may be used by causing it or a facsimile thereof to
be impressed or affixed or in any other manner reproduced.
ARTICLE IX
FISCAL YEAR
The fiscal year of the Corporation shall end on the 31st day of December in each
year.
ARTICLE X
AMENDMENTS
Any bylaw may be adopted, repealed, altered or amended by two-thirds of the
entire Board at any meeting thereof. The stockholders of the Corporation shall
have the power to amend, alter or repeal any provision of these bylaws only to
the extent and in the manner provided in the Certificate.
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