BYLAWS
OF
UPROAR INC.
ARTICLE I
OFFICES
Section 1.1. Registered Office and Agent. The registered office of the
Corporation in the State of Delaware shall be at 1209 Orange Street, Wilmington,
Delaware 19805. The registered agent at such address shall be The Corporation
Trust Company .
Section 1.2. Other Offices. The Corporation may also have offices at
such other places as the Board of Directors may from time to time appoint or the
business of the Corporation may require.
ARTICLE II
STOCKHOLDERS' MEETINGS
Section 2.1. Place of Meetings. All meetings of the stockholders for
the election of directors shall be held at such place, either within or without
the State of Delaware, as shall be designated from time to time by the Board of
Directors.
Section 2.2. Annual Meetings. An annual meeting of stockholders shall
be held for the election of directors and the transaction of any other proper
business on such date and at such time as shall be designated by the Board of
Directors. If the annual meeting for election of directors is not held on the
date designated therefor, the directors shall cause the meeting to be held as
soon thereafter as convenient.
Section 2.3. Election of Directors. Elections of the directors of the
Corporation shall be by written ballot.
Section 2.4. Special Meetings. Special meetings of the stockholders may
be called at any time by the Chairman of the Board, the Chief Executive Officer,
or the Board of Directors pursuant to a resolution adopted by the affirmative
vote of a majority of the whole Board of Directors. Upon the written request of
any person or persons who have duly called a special meeting, the Secretary
shall fix the date of the meeting, to be held not more than sixty days after
receipt of the request, and shall give due notice thereof. Business transacted
at any special meeting shall be confined to the purposes stated in the notice of
such meeting.
Section 2.5. Quorum. One-third of the shares entitled to vote, present
in person or represented by proxy, shall constitute a quorum at a meeting of
stockholders, except as may be otherwise required by law. When a quorum is once
present, it shall not be broken by the subsequent withdrawal of any stockholder.
Section 2.6. Adjournments. The chairman of any meeting of stockholders,
or a majority of the shares present in person or represented by proxy and
entitled to vote at such meeting, may adjourn the meeting from time to time,
whether or not a quorum is present. 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; provided that, if the adjournment is for more than 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. At such adjourned meeting at which a
quorum shall be present in person or represented by proxy, any business may be
transacted which might have been transacted at the meeting as originally
noticed.
Section 2.7. Voting. Unless otherwise provided in the certificate of
incorporation of the Corporation (the "Certificate of Incorporation"), and
subject to the provisions of applicable law and of these Bylaws relating to the
determination of stockholders entitled to vote at any meeting of stockholders,
each stockholder shall be entitled to one vote for each share of capital stock
held by such stockholder. Except as otherwise provided by law, in all matters
other than the election of directors, the affirmative vote of the majority of
the shares present in person or represented by proxy at the meeting and entitled
to vote on the subject matter shall be the act of the stockholders. Directors
shall be elected by a plurality of the votes of the shares present in person or
represented by proxy at the meeting and entitled to vote on the election of
directors.
Section 2.8. Proxies. Each stockholder entitled to vote at a meeting of
stockholders, or (if not then prohibited by the Certificate of Incorporation) to
consent or dissent to corporate action in writing without a meeting, may
authorize another person or persons to act for such stockholder by proxy, but no
such proxy shall be voted or acted upon after three years from its date, unless
the proxy provides for a longer period. A duly executed proxy shall be
irrevocable if it states that it is irrevocable and if, and only as long as, it
is coupled with an interest sufficient in law to support an irrevocable power. A
proxy may be made irrevocable regardless of whether the interest with which it
is coupled is an interest in the stock itself or an interest in the Corporation
generally. All proxies shall be filed with the Secretary of the meeting before
being voted upon.
Section 2.9. 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, 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 entitled to vote at such meeting.
Section 2.10. Consent in Lieu of Meetings. Unless otherwise provided in
the Certificate of Incorporation, any action required to be taken at any annual
or special meeting of stockholders, or any action which may be taken at any
annual or special meeting of such stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted and shall be delivered to the Corporation by delivery in
accordance with law to its registered office in the State of Delaware, its
principal place of business or the Secretary of the Corporation. Prompt notice
of the taking of the corporate action without a meeting by less than unanimous
written consent shall be given to those stockholders who have not consented in
writing.
Section 2.11. List of Stockholders. The officer who has charge of the
stock ledger of the Corporation shall prepare and make, at least ten 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. The 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 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.
Section 2.12. Order of Business. At each meeting of the stockholders,
the Chairman of the Board or, in his absence, such person as shall be selected
by the Board shall act as the 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.
Section 2.13. Proposal of Stockholder Business and Nominations:
A. Annual Meetings of Stockholders.
(1) Nominations of persons for election to the Board of Directors of
the Corporation and the proposal of business to be considered by the
stockholders may be made at an annual meeting of stockholders only (a) pursuant
to the Corporation's notice of meeting (or any supplement thereto), (b) by or at
the direction of the Board of Directors or (c) by any stockholder of the
Corporation who was a stockholder of record of the Corporation at the time the
notice provided for in this Section 11 is delivered to the Secretary of the
Corporation, who is entitled to vote at the meeting and who complies with the
notice procedures set forth in this Section 11.
(2) For nominations or other business to be properly brought before an
annual meeting by a stockholder pursuant to clause (c) of paragraph A.(1) of
this Section 11, the stockholder must have given timely notice thereof in
writing to the Secretary of the Corporation and any such proposed business other
than the nominations of persons for election to the Board of Directors must
constitute a proper matter for stockholder action. To be timely, a stockholder's
notice shall be delivered to the Secretary at the principal executive offices of
the Corporation not later than the close of business on the ninetieth day nor
earlier than the close of business on the one hundred twentieth day prior to the
first anniversary of the preceding year's annual meeting; provided, however,
that in the event that the date of the annual meeting is more than thirty days
before or more than seventy days after such anniversary date, notice by the
stockholder to be timely must be so delivered not earlier than the close of
business on the one hundred twentieth day prior to such annual meeting and not
later than the close of business on the later of the ninetieth day prior to such
annual meeting or the tenth day following the day on which public announcement
of the date of such meeting is first made by the Corporation. In no event shall
the public announcement of an adjournment of an annual meeting commence a new
time period for the giving of a stockholder's notice as described above. Such
stockholder's notice shall set forth: (a) as to each person whom the stockholder
proposes to nominate for election or re-election as a director, all information
relating to such person that is required to be disclosed in solicitations of
proxies for election of directors, or is otherwise required, in each case
pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended
(the "Exchange Act") and Rule 14a-11 thereunder (and such person's written
consent to being named in the proxy statement as a nominee and to serving as a
director if elected); (b) as to any other business that the stockholder proposes
to bring before the meeting, a brief description of the business desired to be
brought before the meeting, the text of the proposal or business (including the
text of any resolutions proposed for consideration and, in the event that such
business includes a proposal to amend the Bylaws of the Corporation, the
language of the proposed amendment), the reasons for conducting such business at
the meeting and any material interest in such business of such stockholder and
the beneficial owner, if any, on whose behalf the proposal is made; and (c) as
to the stockholder giving the notice and the beneficial owner, if any, on whose
behalf the nomination or proposal is made (i) the name and address of such
stockholder, as they appear on the Corporation's books, and of such beneficial
owner, (ii) the class and number of shares of capital stock of the Corporation
which are owned beneficially and of record by such stockholder and such
beneficial owner, (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 or
nomination, and (iv) a representation whether the stockholder or the beneficial
owner, if any, intends or is part of a group which intends (a) to deliver a
proxy statement and/or form of proxy to holders of at least the percentage of
the Corporation's outstanding capital stock required to approve or adopt the
proposal or elect the nominee and/or (b) otherwise to solicit proxies from
stockholders in support of such proposal or nomination. The Corporation may
require any proposed nominee to furnish such other information as it may
reasonably require to determine the eligibility of such proposed nominee to
serve as a director of the Corporation.
(3) Notwithstanding anything in the second sentence of paragraph (A)(2)
of this Section 11 to the contrary, in the event that the number of directors to
be elected to the Board of Directors of the Corporation at an annual meeting is
increased and there is no public announcement by the Corporation naming the
nominees for the additional directorships at least one hundred days prior to the
first anniversary of the preceding year's annual meeting, a stockholder's notice
required by this Section 11 shall also be considered timely, but only with
respect to nominees for the additional directorships, if it shall be delivered
to the Secretary at the principal executive offices of the Corporation not later
than the close of business on the tenth day following the day on which such
public announcement is first made by the Corporation.
B. Special Meetings of Stockholders. Only such business shall be
conducted at a special meeting of stockholders as shall have been brought before
the meeting pursuant to the Corporation's notice of meeting. Nominations of
persons for election to the Board of Directors may be made at a special meeting
of stockholders at which directors are to be elected pursuant to the
Corporation's notice meeting (1) by or at the direction of the Board of
Directors or (2) provided that the Board of Directors has determined that
directors shall be elected at such meeting, by any stockholder of the
Corporation who is a stockholder of record at the time the notice provided for
in this Section 11 is delivered to the Secretary of the Corporation, who is
entitled to vote at the meeting and upon such election and who complies with the
notice procedures set forth in this Section 11. In the event the Corporation
calls a special meeting of stockholders for the purpose of electing one or more
directors to the Board of Directors, any such stockholder entitled to vote in
such election of directors may nominate a person or persons (as the case may be)
for election to such position(s) as specified in the Corporation's notice of
meeting, if the stockholder's notice required by paragraph (A)(2) of this
Section 11 shall be delivered to the Secretary at the principal executive
offices of the Corporation not earlier than the close of business on the one
hundred twentieth day prior to such special meeting and not later than the close
of business on the later of the ninetieth day prior to such special meeting or
the tenth day following the day on which public announcement is first made of
the date of the special meeting and of the nominees proposed by the Board of
Directors to be elected at such meeting. In no event shall the public
announcement of an adjournment or postponement of a special meeting commence a
new time period (or extend any time period) for the giving of a stockholder's
notice as described above.
C. General.
(1) Only such persons who are nominated in accordance with the
procedures set forth in this Section 11 shall be eligible to be elected at an
annual or special meeting of stockholders of the Corporation to serve as
directors and only such business shall be conducted at a meeting of stockholders
as shall have been brought before the meeting in accordance with the procedures
set forth in this Section 11. Except as otherwise provided by law, the chairman
of the meeting shall have the power and duty (a) to determine whether a
nomination or any business proposed to be brought before the meeting was made or
proposed, as the case may be, in accordance with the procedures set forth in
this Section 11 (including whether the stockholder or beneficial owner, if any,
on whose behalf the nomination or proposal is made solicited (or is part of a
group which solicited) or did not so solicit, as the case may be, proxies in
support of such stockholder's nominee or proposal in compliance with such
stockholder's representation as required by clause A.(2)(c)(iv) of this Section
11) and (b) if any proposed nomination or business was not made or proposed in
compliance with this Section 11, to declare that such nomination shall be
disregarded or that such proposed business shall not be transacted.
(2) For purposes of this Section 11, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service, Associated
press or comparable national news service or in a document publicly filed by the
Corporation with the Securities and Exchange Commission pursuant to Section 13,
14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this Section 11, a
stockholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters set
forth in this Section 11. Nothing in this Section 11 shall be deemed to affect
any rights (a) of stockholders to request inclusion of proposals in the
Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act or
(b) of the holders of any series of preferred stock to elect directors pursuant
to any applicable provisions of the certificate of incorporation.
ARTICLE III
DIRECTORS
Section 3.1. Powers and Number. The business and affairs of the
Corporation shall be managed by or under the direction of its Board of
Directors, which may exercise all such powers of the Corporation and do all such
lawful acts and things as are not by applicable law or by the Certificate of
Incorporation or by these Bylaws directed or required to be exercised or done by
the stockholders. Unless fixed by the Certificate of Incorporation, the number
of directors which shall constitute the whole Board shall be fixed by resolution
of the Board of Directors or by the stockholders at the annual meeting of the
stockholders, except as provided in Section 2 of this Article. The directors
need not be residents of the State of Delaware or stockholders in the
Corporation.
Section 3.2. Election and Term. Directors shall be elected by the
stockholders at the annual meeting of stockholders of the Corporation. Each
director shall hold office until the next annual meeting of stockholders and
until such director's successor is elected and qualified, or until such
director's earlier death, resignation or removal.
Section 3.3. Vacancies. Vacancies and newly created directorships
resulting from any increase in the authorized number of directors may be filled
by a majority of the directors then in office, though less than a quorum, or by
a sole remaining director. Any director so chosen shall hold office until the
next annual meeting of stockholders and until such director's successor is
elected and qualified, or until such director's earlier death, resignation or
removal. If there are no directors in office, then an election of directors may
be held in the manner provided by applicable law. If, at the time of filling any
vacancy or any newly created directorship, the directors then in office shall
constitute less than a majority of the whole Board (as constituted immediately
prior to any such increase), the Court of Chancery may, upon application of any
stockholder or stockholders holding at least ten percent (10%) of the total
number of the shares at the time outstanding having the right to vote for such
directors, summarily order an election to be held to fill any such vacancies or
newly created directorships, or to replace the directors chosen by the directors
then in office.
Section 3.4. Location of Meetings. The Board of Directors may hold its
meetings, both regular and special, either within or without the State of
Delaware.
Section 3.5. Regular Meetings. Regular meetings of the Board of
Directors may be held at such time and place as shall be determined by the Board
of Directors from time to time. No notice shall be required for regular meetings
the time and place of which have been fixed.
Section 3.6. Special Meetings. Special meetings of the Board of
Directors may be called by the Chairman of the Board, the Chief Executive
Officer or a majority of the directors then in office. Written, oral or any
other mode of notice of the time and place shall be given for special meetings
of the Board of Directors in sufficient time for the convenient assembly of the
directors thereat.
Section 3.7. Quorum. At all meetings of the Board of Directors,
one-third of the total number of directors shall constitute a quorum for the
transaction of business and the vote of the majority of the directors present at
a meeting at which a quorum is present shall be the act of the Board of
Directors, unless the Certificate of Incorporation or these Bylaws shall require
a vote of a greater number. If a quorum shall not be present at any meeting of
the Board of Directors, the directors present thereat may adjourn the meeting
from time to time, without notice other than announcement at the meeting, until
a quorum shall be present.
Section 3.8. Action without a Meeting. Any action required or permitted
to be taken at any meeting of the Board of Directors, or of any committee
thereof, may be taken without a meeting if all of the members of the Board of
Directors or committee, as the case may be, consent thereto in writing, and the
writing or writings are filed with the minutes of proceedings of the Board of
Directors or committee.
Section 3.9. Telephone Conference. Members of the Board of Directors,
or any committee of the Board of Directors, may participate in a meeting of the
Board of Directors, 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 in a meeting shall
constitute presence in person at such meeting.
Section 3.10. Committees of Directors. The Board of Directors may
designate one or more committees, each committee to consist of one or more of
the directors of the Corporation. The Board of Directors may designate one or
more directors as alternate members of any committee, who may replace any absent
or disqualified member at any meeting of the committee.
In the absence or disqualification of a member of a committee, the
member or members present at any meeting and not disqualified from voting,
whether or not such member or members constitute a quorum, may unanimously
appoint another member of the Board of Directors to act at the meeting in the
place of any such absent or disqualified member.
Any such committee, to the extent provided in the resolution of the
Board of Directors, 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
papers which may require it; but no such committee shall have the power or
authority in reference to approving or adopting, or recommending to the
stockholders any action or matter expressly required by law to be submitted to
stockholders for approval, or adopting, amending or repealing any of the Bylaws
of the Corporation. Such committee or committees shall have such name or names
as may be determined from time to time by resolution adopted by the Board of
Directors.
Each committee shall keep regular minutes of its meetings and report
the same to the Board of Directors when required.
Section 3.11. Compensation of Directors. Unless otherwise restricted by
the Certificate of Incorporation or these Bylaws, the Board of Directors shall
have the authority to fix the compensation of directors. The directors may be
paid their expenses, if any, of attendance at each meeting of the Board of
Directors and may be paid a fixed fee for attendance at each meeting of the
Board of Directors attended and/or an annual fee for serving as director, or
both. Such fees may be paid in the form of cash, shares of the Corporation's
stock, options to purchase shares of the Corporation's stock, any combination of
the foregoing, or in such other form as the Board of Directors may determine. No
such payment shall preclude any director from serving the Corporation in any
other capacity and receiving compensation therefor. Members of special or
standing committees may be paid like compensation for attending committee
meetings and/or serving on committees.
Section 3.12. Resignation; Removal of Directors. Any director may
resign at any time upon written notice to the Corporation. Such resignation
shall be effective at the time specified in the written notice thereof or, if no
time is specified, at the time of its receipt by the Chairman of the Board or
the Secretary of the Corporation. Any director or the entire Board of Directors
may be removed, with or without cause, by the holders of a majority of the
shares then entitled to vote at an election of directors, except as otherwise
provided by law.
ARTICLE IV
OFFICERS
Section 4.1. Executive Officers. The executive officers of the
Corporation shall be chosen by the directors and may include a Chairman of the
Board, a Vice Chairman of the Board, a Chief Executive Officer, a President, one
or more Vice Presidents (with one or more classes of seniority, including Senior
Vice Presidents and Executive Vice Presidents), a Secretary, one or more
Assistant Secretaries, a Chief Financial Officer, a Treasurer, one or more
Assistant Treasurers, and such other officers as the Board of Directors may deem
necessary; provided that the executive officers of the Corporation shall in any
event include a Chairman of the Board or a President and a Secretary or a
Treasurer. Any number of offices may be held by the same person.
Section 4.2. Term of Office; Vacancies; Resignation and Removal. Each
officer of the Corporation shall hold office until the meeting of the Board of
Directors following the next annual meeting of stockholders and until such
officer's successor is elected and qualified, or until such officer's earlier,
death, resignation or removal. Any vacancy occurring in any executive office of
the Corporation shall be filled by the Board of Directors or by such other
executive officer of the Corporation as the Board of Directors may authorize.
Any officer may resign at any time upon written notice to the Corporation. Any
officer may be removed, with or without cause, by the Board of Directors.
Section 4.3. Chairman of the Board. The Chairman of the Board shall be
the chief executive officer of the Corporation; he shall preside at all meetings
of the stockholders and directors; he shall conduct general and active
management of the business of the Corporation; he shall see that all orders and
resolutions of the Board of Directors are carried into effect, subject, however,
to the right of the directors to delegate any specific powers (except such as
may be by statute exclusively conferred on the Chairman of the Board) to any
other officer or officers of the Corporation; he shall have the general power
and duties of supervision and management usually vested in the office of
Chairman of the Board of a corporation; and he shall exercise such additional
authority and perform such additional duties as may be provided in these Bylaws
or as the Board of Directors may from time to time assign to him.
Section 4.4. Secretary. The Secretary shall have the duty to record the
proceedings of all meetings of the stockholders, the Board of Directors and the
committees of the Board of Directors in a book to be kept for that purpose. He
shall give, or cause to be given, notice of all meetings of the stockholders,
the Board of Directors and its committees, and he shall exercise such additional
authority and perform such additional duties as may be assigned to him from time
to time by the Board of Directors or the Chairman of the Board, to whose
supervision he shall be subject. He shall keep in safe custody the corporate
seal of the Corporation and, when authorized, shall affix the same to any
instrument requiring it; when so affixed, it may be attested by the Secretary's
signature. The Board of Directors may give general authority to any other
officer to affix the seal of the Corporation and to attest the affixing by such
officer's signature.
Section 4.5. Other Officers. Each of the other officers of the
Corporation shall have such authority and duties as may be provided in these
Bylaws or assigned to such officer from time to time by the Board of Directors
or by the executive officer, if any, to whose supervision such officer may be
subject, and such officer shall have such additional authority and duties as are
incident to his office except to the extent inconsistent with the authority and
duties provided in these Bylaws or assigned to him by the Board of Directors or
such executive officer.
ARTICLE V
CORPORATE RECORDS
Section 5.1. Any stockholder of record, in person or by attorney or
other agent, shall, upon written demand under oath stating the purpose thereof,
have the right during the usual hours for business to inspect for any proper
purpose the Corporation's stock ledger, a list of its stockholders, and its
other corporate books and records including a copy of these Bylaws, and to make
copies or extracts therefrom. A proper purpose shall mean a purpose reasonably
related to such person's interest as a stockholder. In every instance where an
attorney or other agent shall be the person who seeks the right to inspection,
the demand under oath shall be accompanied by a power of attorney or such other
writing which authorizes the attorney or other agent to so act on behalf of the
stockholder. The demand under oath shall be directed to the Corporation at its
registered office in the State of Delaware or at its principal place of
business.
ARTICLE VI
STOCK CERTIFICATES, DIVIDENDS, ETC.
Section 6.1. Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed by, or in the name of the
Corporation by, the Chairman of the Board or the Vice-Chairman of the Board, or
the President or a Vice-President, and the Treasurer or an Assistant Treasurer,
or the Secretary or an Assistant Secretary of the Corporation, certifying the
number of shares owned by such holder in the Corporation. Any or all of the
signatures on the certificate may be facsimile.
Section 6.2. Transfers. Transfers of shares of the Corporation shall be
made on the books of the Corporation upon surrender of the certificates
therefor, endorsed by the person named in the certificate or by his attorney
lawfully constituted in a writing duly executed and filed with the Corporation
or with the Corporation's transfer agent or registrar. No transfer shall be made
which is inconsistent with law.
Section 6.3. Lost Certificate. The Corporation may issue a new
certificate of stock in place of any certificate theretofore issued by it,
alleged to have been lost, stolen or destroyed, and the Corporation may require
the owner of the lost, stolen or destroyed certificate, or such owner's legal
representative, to give the Corporation a bond sufficient to indemnify it
against any claim that may be made against it on account of the alleged loss,
theft or destruction of any such certificate or the issuance of such new
certificate.
Section 6.4. Record Dates.
A. In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, the Board of Directors may fix, in advance, a record date,
which record date shall not precede the date upon which the resolution fixing
the record date is adopted by the board of directors, and which record date
shall not be more than sixty nor less than ten days before the date of such
meeting. If not record date is fixed by the Board of Directors, the record date
for determining stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the day next preceding the day
on which notice is given, or, if notice is waived, at the close of business on
the day next preceding the day on which the meeting is held. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned meeting.
B. In order that the Corporation may determine the stockholders
entitled to consent to corporate action in writing without a meeting (where not
prohibited by the Certificate of Incorporation), the Board of Directors may fix
a record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Directors, and
which dates shall not be more than ten days after the date upon which the
resolution fixing the record date is adopted by the Board of Directors. If no
record date has been fixed by the Board of Directors, the record date for
determining stockholders entitled to express consent to corporate action in
writing without a meeting, (i) when no prior action by the Board of Directors is
required, shall be the first date on which a signed written consent is delivered
to the Corporation in accordance with law, and (ii) when prior action by the
Board of Directors is required, shall be at the close of business on the day on
which the Board of Directors adopts the resolution taking such prior action.
C. In order that the Corporation may determine the stockholders
entitled to receive payment of any dividend or other distribution or allotment
of any rights, or entitled to exercise any rights in respect of any change,
conversion or exchange of stock or for the purpose of any other lawful action,
the Board of Directors may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted,
and which record date shall be not more than sixty days prior to such action.
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.1. Dividends. The Board of Directors may declare and pay
dividends upon the outstanding shares of the capital stock of the Corporation
from time to time and to such extent as they deem advisable, in the manner and
upon the terms and conditions provided by applicable statutes and the
Certificate of Incorporation.
Section 7.2. Reserves. Before payment of any dividend the Board of
Directors may set apart out of any funds of the Corporation available for
dividends as the directors, from time to time in their absolute discretion,
think proper, and the directors may abolish any such reserve in the manner at
any time.
Section 7.3. Seal. The corporate seal shall have inscribed thereon the
name of the Corporation, the year of its organization and the words "Corporate
Seal - Delaware."
Section 7.4. Fiscal Year. The fiscal year of the Corporation shall be
fixed, and may be changed from time to time, by the Board of Directors.
Section 7.5. Notice. Whenever written notice is required to be given to any
person, it may be given to such person, either personally or by sending a copy
thereof through the mail or by facsimile to his address or facsimile number as
it appears on the records of the Corporation, or supplied by him to the
Corporation for the purpose of notice. If the notice is sent by mail, it shall
be deemed given when deposited in the United States mail, postage prepaid. If
notice is sent by facsimile, it shall be deemed given upon successful
transmission of the facsimile.
Section 7.6. Waiver of Notice. Whenever any written notice is required
to be given by statute, or by the Certificate of Incorporation or these Bylaws,
a written waiver, signed by the person entitled to notice, whether before or
after the time stated therein, shall be deemed equivalent to notice. Attendance
of a person either in person or by proxy at any meeting shall constitute a
waiver of notice of such meeting, except where the person attends a meeting for
the express purpose of objecting at the beginning of the meeting to the
transaction of any business because the meeting was not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of any
meeting, need be specified in any written waiver of notice of such meeting.
ARTICLE VIII
AMENDMENTS
Section 8.1. These Bylaws may be amended or repealed by the vote of a
majority of the shares present in person or represented by proxy at a meeting of
the stockholders called for such purpose and entitled to vote thereon. In
addition, in accordance with the Corporation's Certificate of Incorporation, the
Board of Directors shall have the power to amend or repeal any of these Bylaws
by the affirmative vote of 66.67% of the members of the Board of Directors.
ARTICLE IX
INDEMNIFICATION
Section 9.1. Right to Indemnification. The Corporation shall indemnify
and hold harmless, to the fullest extent permitted by applicable law as in
effect from time to time, any person (a "Covered Person") who was or is a party
or is threatened to be made a party to or is otherwise involved in any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (a "Proceeding"), by reason of the
fact that he, or a person for whom he is the legal representative, is or was a
director or officer of the Corporation or, while a director or officer of the
Corporation, is or was serving at the request of the Corporation as a director,
officer, employee or agent of another Corporation or of a partnership, joint
venture, trust, or other enterprise or a nonprofit entity, including service
with respect to employee benefit plans, against all liability or loss suffered
and expenses (including attorneys' fees) reasonably incurred by such Covered
Person. Notwithstanding the preceding sentence, except as otherwise provided in
Section 3 of this Article IX, the Corporation shall be required to indemnify a
Covered Person only if authorized by the Board of Directors of the Corporation.
Section 9.2. Prepayment of Expenses. The Corporation shall pay the
expenses (including attorneys' fees) incurred by a Covered Person in defending
any Proceeding in advance of its final disposition, provided, however, that, to
the extent required by law, such payment of expenses in advance of such final
disposition shall be made only upon receipt of an undertaking by or on behalf of
the Covered Person to repay all amounts advanced if it should be ultimately
determined that the Covered Person is not entitled to be indemnified under this
Article IX or otherwise.
Section 9.3. Claims. If a claim for indemnification or advancement of
expenses under this Article IX is not paid in full within thirty days after a
written claim therefor by the Covered Person has been received by the
Corporation, the Covered Person may file suit to recover the unpaid amount of
such claim and, if successful in whole or in part, shall be entitled to be paid
the expense of prosecuting such claim. In any such action, the Corporation shall
have the burden of proving that the Covered Person is not entitled to the
requested indemnification or advancement of expenses under applicable law.
Section 9.4. Nonexclusivity of Rights. The rights conferred on any
Covered Person by this Article IX shall not be exclusive of any other rights
which such Covered Person may have or hereafter acquire under any statute,
provision of the Certificate of Incorporation, provision of these Bylaws,
agreement, vote of stockholders or disinterested directors or otherwise.
Section 9.5. Other Sources. The Corporation's obligation, if any, to
indemnify or to advance expenses to any Covered Person who was or is serving at
its request as a director, officer, employee or agent of another Corporation,
partnership, joint venture, trust, enterprise or nonprofit entity shall be
reduced by any amount such Covered Person collects as indemnification or
advancement of expenses from such other Corporation, partnership, joint venture,
trust, enterprise or non-profit entity.
Section 9.6. Amendment or Repeal. Any amendment or repeal of the
foregoing provisions of this Article IX shall not adversely affect any right or
protection hereunder of any Covered Person in respect of any act or omission
occurring prior to the time of such amendment or repeal.
Section 9.7. Other indemnification and Prepayment of Expenses. This
Article IX shall not limit the right of the Corporation, to the extent and in
the manner permitted by law, to indemnify and to advance expenses to persons
other than Covered Persons when and as authorized by appropriate corporate
action.