BYLAWS
OF
ICG SERVICES, INC.
(A DELAWARE CORPORATION)
ARTICLE I
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STOCKHOLDERS
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SECTION 1.1 ANNUAL MEETINGS. The annual meeting of
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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 as the board of directors
shall fix each year. Each such annual meeting shall be held at
such date, time, and place, within or without the State of
Delaware, as shall be determined by the board of directors. Any
annual meeting of stockholders may be adjourned from time to time
and place to place until its business is completed.
SECTION 1.2 SPECIAL MEETINGS. Except as otherwise
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required by law or by the certificate of incorporation and
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 on liquidation, special meetings of the stockholders may be
called only by the chairman of the board or the president, or by
the board of directors pursuant to a resolution approved by a
majority of the entire board of directors. The term "entire
board of directors," as used in these bylaws, means the total
number of directors which the Corporation would have if there
were no vacancies. A special meeting of stockholders shall be
called by the president upon the written request, stating date,
time, place and purpose(s) of the meeting, of stockholders who
together own of record not less than 5% of the voting power of
the outstanding stock of all classes entitled to vote at such
meeting.
SECTION 1.3 CONSENT OF STOCKHOLDERS IN LIEU OF
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MEETING. Unless otherwise restricted by the certificate of
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incorporation, any action required or permitted to be taken
at any annual meeting or special meeting of the 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 to its
registered office in the State of Delaware, its principal
place of business, or an officer or agent of the Corporation
having custody of the book in which proceedings of meetings of
stockholders are recorded. Any such consent may be in counterparts
and shall be effective on the date of the last signature thereon
unless otherwise provided therein. 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 and who, if the action had been taken at a
meeting, would have been entitled to notice of the meeting if the
record date for such meeting had been the date that written
consents signed by a sufficient number of stockholders to take
the action were delivered to the Corporation as provided above.
SECTION 1.4 NOTICE OF MEETING. Written notice
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stating the place, date and hour of the meeting and, in case of a
special meeting, the purpose or purposes for which the meeting is
called, shall be given not less than 10 nor more than 60 days
before the date of the meeting, except as otherwise required by
statute or the certificate of incorporation, either personally or
by mail, prepaid telegram, telex, or facsimile transmission 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, addressed to the
stockholder at his address as it appears on the stock records of
the Corporation. If given personally or otherwise than by mail,
such notice shall be deemed to be given when either handed to the
stockholder or delivered to the stockholder's address as it
appears on the stock records of the Corporation. The Corporation
shall, at the written request of any stockholder, cause such
notice to such stockholder to be confirmed to another address
and/or by such other means as such stockholder may reasonably
request, provided that if a written request is received after the
date any such notice is mailed, such request shall be effective
for subsequent notices only.
SECTION 1.5 WAIVER. Attendance of a stockholder of
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the Corporation, either in person or by proxy, at any meeting,
whether annual or special, shall constitute a waiver of notice of
such meeting, except where a stockholder attends a meeting for
the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business because the meeting
is not lawfully called or convened. A written waiver of notice
of any such meeting signed by a stockholder or stockholders
entitled to such notice, whether before, at or after the time for
notice or the time of the meeting, shall be equivalent to notice.
Neither the business to be transacted at, nor the purposes of,
any meeting need be specified in any written waiver of notice.
SECTION 1.6 LIST OF STOCKHOLDERS ENTITLED TO VOTE.
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The secretary shall prepare and make available, at least 10 days
before every meeting of stockholders, a complete list of the
stockholders entitled to vote at the meeting, arranged in
alphabetical order and showing the address and the number of
shares registered in the name of each stockholder. Such list
shall be open to the examination of any stockholder for any
purpose germane to the meeting, during ordinary business hours,
for a period of at least 10 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 produced and kept at the place of the meeting
during the whole time thereof and may be inspected by any
stockholder who is present.
SECTION 1.7 QUORUM; ADJOURNMENT. Except as
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otherwise required by law or the certificate of incorporation,
the holders of one-third of the outstanding shares of each class
of stock entitled to vote at any meeting of the stockholders,
present in person or by proxy, shall constitute a quorum. With
respect to any matter on which stockholders vote separately as a
class, the holders of one-third of the outstanding shares of such
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class shall constitute a quorum for a meeting with respect to
such matter. Two or more classes or series of stock shall be
considered a single class for purposes of determining existence
of a quorum for any matter to be acted on if the holders thereof
are entitled or required to vote together as a single class at
the meeting on such matter. If a quorum shall fail to attend any
meeting, the chairman of the meeting may adjourn the meeting from
time to time, without further notice if the time and place of the
adjourned meeting are announced at the meeting, until a quorum
shall be present. At such adjourned meeting at which a quorum is
present, any business may be transacted which might have been
transacted at the original meeting. 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.
SECTION 1.8 RECORD DATE. In order that the
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Corporation may determine the stockholders entitled to notice of
or to vote at any meeting, or at any adjournment of a meeting, of
stockholders or entitled to express consent to corporate action
in writing without a meeting 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 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. The record date for determining the stockholders
entitled to notice of or to vote at any meeting of the
stockholders or any adjournments thereof shall not be more than
60 nor less than 10 days before the date of such meeting. The
record date for determining the stockholders entitled to consent
to corporate action in writing without a meeting shall not be
more than 10 days after the date upon which the resolution fixing
the record date is adopted by the board of directors. The record
date for any other action shall not be more than 60 days prior to
such action. If no record date is fixed, (i) the record date for
determining stockholders entitled to notice of or to vote at any
meeting shall be at the close of business on the day next
preceding the day on which notice is given or, if notice is
waived by all stockholders, at the close of business on the day
next preceding the day on which the meeting is held; (ii) the
record date for determining stockholders entitled to express
consent to corporate action in writing without a meeting, when no
prior action by the board of directors is required, shall be the
first date on which a signed written consent setting forth the
action taken or to be taken is delivered to the Corporation by
delivery to its registered office in the State of Delaware, its
principal place of business, or an officer of agent of the
corporation having custody of the book in which proceedings of
meetings of stockholders are recorded, and, 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; and (iii) the record date
for determining stockholders for any other purpose shall be at
the close of business on the day on which the board of directors
adopts the resolution relating to such other purpose. A
determination of stockholders of record entitled to notice of or
to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the board of
directors may fix a new record date for the adjourned meeting.
SECTION 1.9 PROCEDURE. The order of business and
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all other matters of procedure at every meeting of the
stockholders may be determined by the presiding officer.
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SECTION 1.10 ORGANIZATION. Meetings of stockholders
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shall be presided over by the chairman of the board, or in his
absence by the president, or in his absence by a vice president,
or in the absence of the foregoing persons by a chairman
designated by the board of directors, or in the absence of such
designation by a chairman chosen at the meeting. The secretary
shall act as secretary of the meeting, but in his absence the
chairman of the meeting may appoint any person to act as
secretary of the meeting.
SECTION 1.11 VOTING; PROXIES. Unless otherwise
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provided in the certificate of incorporation, each stockholder
entitled to vote at any meeting of stockholders shall be entitled
to one vote for each share of stock held by such stockholder
which has voting power upon the matter in question. Each
stockholder entitled to vote at a meeting of stockholders or to
express consent or dissent to corporate action in writing without
a meeting may authorize another person or persons to act for him
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 stockholder may revoke any proxy which is not
irrevocable by attending the meeting and voting in person or by
filing an instrument in writing revoking the proxy or another
duly executed proxy bearing a later date with the secretary of
the Corporation. Voting at meetings of stockholders need not be
by written ballot and need not be conducted by inspectors unless
the holders of a majority of the outstanding shares of any class
of stock entitled to vote thereon present in person or by proxy
at such meeting shall so determine. At all meetings of
stockholders for the election of directors, such election and all
other elections and questions shall, unless otherwise provided by
law or by the certificate of incorporation or these bylaws, be
decided by the vote of the holders of a majority of the
outstanding shares of all classes of stock entitled to vote
thereon present in person or by proxy at the meeting, voting as a
single class.
SECTION 1.12 SHARES HELD BY NOMINEES. The
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Corporation may establish a procedure by which the beneficial
owner of shares that are registered in the name of a nominee is
recognized by the Corporation as a stockholder. The extent of
this recognition may be determined in the procedure thus
established.
ARTICLE II
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BOARD OF DIRECTORS
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SECTION 2.1 NUMBER, ELECTION, QUALIFICATION AND TERM
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OF OFFICE. The initial board of directors of the Corporation
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shall consist of five (5) persons. The number of directors which
shall constitute the whole board of directors shall not be less
than three (3) nor more than ten (10). Within such limits, the
number of directors may be fixed from time to time by the board of
directors. A director shall be a natural person who is eighteen
years of age or older. A director need not be a resident of
Delaware or a stockholder of the Corporation. Directors shall be
elected at each annual meeting of stockholders. Each director
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shall hold office until the next annual meeting of stockholders
following his election and thereafter until his successor shall
have been elected and qualified.
SECTION 2.2 RESIGNATION AND REMOVAL. Any director
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may resign at any time upon written notice to the board of
directors, the chairman of the board or the president of the
Corporation. Such resignation shall take effect at the time
specified therein, and unless otherwise specified therein no
acceptance of such resignation shall be necessary to make it
effective. Any director may be removed with or without cause at
any time upon the affirmative vote the holders of a majority of
the outstanding shares of stock of the Corporation then entitled
to vote at an election of directors.
SECTION 2.3 NEWLY CREATED DIRECTORSHIPS AND
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VACANCIES. Except as otherwise fixed pursuant to the provisions
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of the certificate of incorporation, newly created directorships
resulting from any increase in the number of directors and any
vacancies on the board of directors resulting from death,
resignation, disqualification, removal or other cause shall be
filled by the remaining members of the board of directors. Any
such vacancies or newly created directorships may also be filled
upon the affirmative vote of the holders of a majority of the
outstanding shares of stock of the Corporation entitled to vote
for the election of directors, given at a special meeting of the
stockholders called for the purpose. Each director chosen to
fill a vacancy shall hold office until the next annual meeting
and thereafter until his successor shall have been elected and
qualified.
SECTION 2.4 REGULAR MEETINGS. Regular meetings of
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the board of directors shall be held at such times and at such
places within or without of the State of Delaware as the board of
directors may from time to time determine.
SECTION 2.5 SPECIAL MEETINGS. Special meetings of
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the board of directors may be called at any time, at any place
and for any purpose by the chairman of the board, any two members
of the board, or the president.
SECTION 2.6 NOTICE OF MEETINGS. Notice of regular
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meetings of the board of directors need not be given. Notice of
every special meeting of the board of directors shall be given to
each director at his usual place of business or at such other
address as shall have been furnished by him for such purpose.
Such notice shall be properly and timely given if it is (a)
deposited in the United States mail not later than 7 calendar
days preceding the date of the meeting, or (b) personally
delivered, telegraphed, sent by facsimile transmission or
communicated by telephone at least 24 hours before the time of
the meeting. Unless required by law, such notice need not
include a statement of the business to be transacted at, or the
purpose of, any such meeting.
SECTION 2.7 WAIVER. Attendance of a director at a
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meeting of the board of directors shall constitute a waiver of
notice of such meeting, except where a director attends a meeting
for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business because the meeting
is not lawfully called or convened. A written waiver of notice
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signed by a director or directors entitled to such notice,
whether before, at or after the time for notice or the time of
the meeting, shall be equivalent to the giving of such notice.
SECTION 2.8 QUORUM. Except as may be otherwise
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provided by law or in the certificate of incorporation, the
presence of a majority of the entire board of directors shall be
necessary and sufficient to constitute a quorum for the
transaction of business at any meeting of the board of directors.
The affirmative vote of a majority of all directors constituting
the board of directors shall be required for the board of
directors to act. In the case of any meeting of the board of
directors a quorum shall not be present, the directors present
may adjourn the meeting from time to time until a quorum shall
attend.
SECTION 2.9 CHAIRMAN OF THE BOARD. A chairman of
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the board may be appointed by the board of directors and, if
appointed, shall have such general powers and duties of
supervision and management as are usually vested in the office of
chairman of the board. He shall preside at all meetings of the
stockholders and directors at which he may be present and shall
have such other duties, powers and authority as may be prescribed
elsewhere in these bylaws. The board of directors may delegate
such other authority and assign such additional duties to the
chairman of the board, other than those conferred by law
exclusively upon the president, as it may from time to time
determine. The chairman of the board shall hold his position at
the pleasure of the board of directors and may be removed at any
time by the board of directors with or without cause.
SECTION 2.10 TELEPHONIC MEETINGS PERMITTED. Members
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of the board of directors, or of any committee thereof, may
participate in a meeting of such board or committee by means of
conference telephone or similar communications equipment by means
of which all persons participating in the meeting can hear each
other and such participation shall constitute presence in person
at such meeting.
SECTION 2.11 POWERS. The business, property and
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affairs of the Corporation shall be managed by or under the
direction of the board of directors, which shall have and may
exercise all the powers of the Corporation to do all such lawful
acts and things as are not by law, by the certificate of
incorporation or by these bylaws, directed or required to be
exercised or done by the stockholders.
SECTION 2.12 ORGANIZATION. Meetings of the board of
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directors shall be presided over by the chairman of the board, or
in his absence by the president, or in their absence by a
chairman chosen at the meeting. The secretary shall act as
secretary of the meeting, but in his absence the chairman of the
meeting may appoint any person to act as secretary of the
meeting.
SECTION 2.13 ACTION WITHOUT A MEETING. Unless
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otherwise restricted by the certificate of incorporation or these
bylaws, 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 written consent thereto is signed by
all members of the board of directors or of such committee, as
the case may be, and such written consent is filed with the
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minutes of proceedings of the board or committee. Any such
consent may be in counterparts and shall be effective on the date
of the last signature thereon unless otherwise provided therein.
SECTION 2.14 COMPENSATION. Unless otherwise
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restricted by the certificate of incorporation or these bylaws,
the board of directors shall have the authority to fix from time
to time the compensation of directors. The directors may be
paid their expenses, if any, of attendance at each meeting of the
board of directors and the performance of their responsibilities
as directors and may be paid a fixed sum for attendance at each
meeting of the board of directors and/or a stated salary as
director. No such payment shall preclude any director from
serving the Corporation or its parent or subsidiary corporations
in any other capacity and receiving compensation therefor. The
board of directors may also allow compensation for members of
special or standing committees for service on such committees.
ARTICLE III
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COMMITTEES
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SECTION 3.1 DESIGNATION OF COMMITTEES. Subject to
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the other provisions of these bylaws, the board of directors may
establish committees for the performance of delegated or
designated functions to the extent permitted by law, each
committee to consist of one or more directors of the Corporation.
The board may designate one or more directors as alternate
members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. In the
absence or disqualification of a member of a committee, the
member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another member of the board of
directors to act at the meeting in the place of such absent or
disqualified member.
SECTION 3.2 COMMITTEE POWERS AND AUTHORITY. The
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board of directors may provide, by resolution or by amendment to
these bylaws, that a committee 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 the following matters: (i)
approving or adopting, or recommending to the stockholders, any
action or matter expressly required by the Delaware General
Corporation Law to be submitted to stockholders for approval, or
(ii) adopting, amending or repealing any bylaw of the
Corporation..
SECTION 3.3 COMMITTEE PROCEDURES. To the extent the
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board of directors or the committee does not establish other
procedures for the committee, each committee shall be governed by
the procedures established in Article II (except that a committee
need not have annual meetings).
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ARTICLE IV
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OFFICERS
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SECTION 4.1 NUMBER. The officers of the Corporation
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shall be appointed or elected by vote of the board of directors.
The initial officers shall be a president and a secretary.
SECTION 4.2 ADDITIONAL OFFICERS. The board of
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directors may appoint such other officers, including, without
limitation, assistant secretaries and assistant treasurers, as it
shall deem appropriate. Such other officers shall have such
power and authority as determined by the board, except as
otherwise provided herein.
SECTION 4.3 TERM OF OFFICE, RESIGNATION. All
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officers, agents and employees of the Corporation shall hold
their respective offices or positions at the pleasure of the
board of directors and may be removed at any time by the board of
directors with or without cause. Each officer shall hold his
office until his successor is elected and qualified or until his
earlier resignation or removal. Except as otherwise provided in
any officer's or employee's employment contract, any officer may
resign at any time by giving written notice of his resignation to
the president or to the secretary, and acceptance of such
resignation shall not be necessary to make it effective unless
the notice so provides. Any vacancy occurring in any office
shall be filled by vote of the board of directors.
SECTION 4.4 DUTIES. The officers of the Corporation
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shall perform the duties and exercise the powers assigned to them
from time to time by the board of directors or the president. In
the absence of such assignment, the officers shall have the
duties and powers described in this Article IV.
SECTION 4.5 CHAIRMAN OF THE BOARD. The chairman of
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the board or, if there is not a chairman of the board, the
president, shall, if present, preside at all meetings of the
board of directors and stockholders and shall have general charge
and supervision of the business of the Corporation. The chairman
of the board shall exercise and perform such other powers and
duties as may be from time to time assigned to him by the board
of directors or prescribed by the bylaws.
SECTION 4.6 PRESIDENT. The president shall be the
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chief executive officer of the Corporation and shall perform all
duties incident to such office, and such other duties as, from
time to time, may be assigned to him or her by the board of
directors. The president may execute contracts, deeds and other
instruments on behalf of the Corporation. In the absence of the
chairman of the board or in the event of his disability,
inability or refusal to act, the president shall perform the
duties and exercise the power of the chairman of the board. The
president shall have full authority on behalf of the Corporation
to attend any meeting, give any waiver, cast any vote, grant any
discretionary or directed proxy to any person, and exercise any
other rights of ownership with respect to any shares of capital
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stock or other securities held by the Corporation and issued by
any other corporation or with respect to any partnership, trust
or similar interest held by the Corporation.
SECTION 4.7 VICE PRESIDENT. Each vice president, if
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any, shall perform such functions as may be prescribed by the
board of directors or the president. Each vice president may
execute contracts, deeds and other instruments on behalf of the
Corporation. Each vice president shall have full authority on
behalf of the Corporation to attend any meeting, give any waiver,
cast any vote, grant any discretionary or directed proxy to any
person, and exercise any other rights of ownership with respect
to any shares of capital stock or other securities held by the
Corporation and issued by any other corporation or with respect
to any partnership, trust or similar interest held by the
Corporation. Upon the death, disability or absence of the
president, the vice president (or if more than one holds office,
the vice president among those present who has held such office
for the longest continuous period, unless another method of
selection has been established by resolution of the board of
directors) shall perform the duties and exercise the powers of
the president. Each vice president shall perform such other
duties as the board, the chairman of the board, or the president
may from time to time prescribe or delegate to him.
SECTION 4.8 SECRETARY. The secretary shall give, or
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cause to be given, notice of all meetings of the stockholders
and, upon the request of a person entitled to call a special
meeting of the board of directors, he shall give notice of any
such special meeting. He shall keep the minutes of all meetings
of the stockholders, the board of directors, or any committee
established by the board of directors. The secretary shall be
responsible for the maintenance of all records of the Corporation
and may attest documents on behalf of the Corporation. The
secretary shall perform such other duties as the board, the
chairman of the board, or the president and chief executive
officer may from time to time prescribe or delegate to him.
SECTION 4.9 TREASURER. The treasurer shall be
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responsible for the control of all funds, securities, receipts
and disbursements of the Corporation and shall deposit or cause
to be deposited, in the name of the Corporation, all moneys or
other valuable effects in such banks, trust companies or other
depositories as shall, from time to time, be selected by or under
authority of the board of directors. If required by the board,
the treasurer shall give a bond for the faithful discharge of his
duties, with such surety or sureties as the board may determine.
He shall keep or cause to be kept full and accurate records of
all receipts and disbursements in books of the Corporation and
shall render to the president and the board, whenever requested,
an account of the financial condition of the Corporation. The
treasurer shall perform such other duties as the board, the
chairman of the board, or the president and chief executive
officer may from time to time prescribe or delegate to him.
SECTION 4.10 ASSISTANT SECRETARIES AND ASSISTANT
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TREASURERS. The assistant secretaries, when authorized by
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the board of directors, may sign with the president or a vice
president certificates for shares of the Corporation the issuance
of which shall have been authorized by a resolution of the board
of directors. The assistant treasurers shall, respectively, if
required by the board of directors, give bonds for the faithful
discharge of their duties in such sums and with such sureties as
the board of directors shall determine. The assistant
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secretaries and assistant treasurers, in general, shall perform
such duties as shall be assigned to them by the secretary or the
treasurer, respectively, or by the president or board of
directors.
SECTION 4.11 OTHER OFFICERS. The other officers, if
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any, of the Corporation shall have such powers and duties in the
management of the Corporation as shall be stated in a resolution
adopted by the board of directors which is not inconsistent with
these bylaws and, to the extent not so stated, as generally
pertain to their respective offices, subject to the control of
the board. The board may require any officer, agent or employee
to give security for the faithful performance of his duties.
SECTION 4.12 SALARIES. The salaries of the officers
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shall be fixed from time to time by the board of directors, and
no officer shall be prevented from receiving such salary by
reason of the fact that such officer is also a director of the
Corporation.
ARTICLE V
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STOCK
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SECTION 5.1 CERTIFICATES. Each stockholder of the
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Corporation shall be entitled to a certificate or certificates
signed by or in the name of the Corporation by the chairman of
the board, the president or a vice president and by the
treasurer, an assistant treasurer, the secretary or an assistant
secretary, all of whom may be the same person, representing the
number of shares of stock of the Corporation owned by such
stockholder. Any or all the signatures on the certificate may be
a facsimile.
SECTION 5.2 FACSIMILE SIGNATURES. In case any
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officer, transfer agent or registrar who has signed or whose
facsimile signature has been placed upon a certificate shall have
ceased to be such officer, transfer agent or registrar before
such certificate is issued, it may be issued by the Corporation
with the same effect as if he, she or it was such officer,
transfer agent or registrar at the date of issue.
SECTION 5.3 FRACTIONAL SHARES OR SCRIP. The
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Corporation may: (a) issue fractions of a share or pay in money
the value of fractions of a share; (b) arrange for disposition of
fractional shares by the stockholders; or (c) issue scrip in
registered or bearer form entitling the holder to receive a full
share upon surrendering enough scrip to equal a full share. Each
certificate representing scrip must be conspicuously labeled
"scrip" and must contain the information required to be included
in a share certificate by the Delaware General Corporation Law.
The holder of a fractional share is entitled to exercise the
rights of a stockholder, including the right to vote, to receive
dividends, and to participate in the assets of the Corporation
upon liquidation. The holder of scrip is not entitled to any of
these rights unless the scrip provides for them. The board of
directors may authorize the issuance of scrip subject to any
condition considered desirable, including (a) that the scrip will
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become void if not exchanged for full shares before a specified
date; and (b) that the shares for which the scrip is exchangeable
may be sold and the proceeds paid to the scripholders.
SECTION 5.4 REGISTERED STOCKHOLDERS. The
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Corporation shall be entitled to treat the holder of record of
any share or shares of stock of the Corporation as the holder in
fact thereof and, accordingly, shall not be bound to recognize
any equitable or other claim to or interest in such share or
shares on the part of any other person, whether or not it has
actual or other notice thereof, except as provided by law.
SECTION 5.5 CANCELLATION OF CERTIFICATES. All stock
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certificates surrendered to the Corporation shall be cancelled
and, except in the case of lost, stolen or destroyed
certificates, no new certificates shall be issued until the
former certificate or certificates for the same number of shares
of the same class of stock have been surrendered and cancelled.
SECTION 5.6 LOST, STOLEN OR DESTROYED STOCK
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CERTIFICATES. The board of directors may direct a new
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certificate or certificates to be issued in place of any
certificate or certificates theretofore issued by the Corporation
alleged to have been lost, stolen or destroyed, upon the making
of an affidavit of that fact by the person claiming the certificate
or certificates to be lost, stolen or destroyed. In its discretion,
and as a condition precedent to the issuance of any such new
certificate or certificates, the board of directors may require
that the owner of such lost, stolen or destroyed certificate or
certificates, or such person's legal representative, give the
Corporation and its transfer agent or agents, registrar or
registrars an indemnity bond in such form and amount as the board
of directors may direct against any claim that may be made
against the Corporation and its transfer agent or agents,
registrar or registrars on account of the alleged loss, theft or
destruction of any such certificate or the issuance of such new
certificate.
SECTION 5.7 TRANSFER OF SHARES. Upon compliance
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with any provisions restricting the transferability of shares
that may be set forth in the Delaware General Corporation Law,
the certificate of incorporation, these bylaws, or any written
agreement in respect thereof, transfers of shares of the
Corporation shall be made only 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 agent or a
registrar and on surrender of the certificate or certificates for
such shares properly endorsed and the payment of all taxes
thereon, if any. Except as may be otherwise provided by law or
these bylaws, the person in whose name shares stand on the books
of the Corporation shall be deemed the owner thereof for all
purposes as regards the Corporation; provided that whenever any
transfer of shares shall be made for collateral security, and not
absolutely, such fact, if known to the secretary of the
Corporation, shall be so expressed in the entry of transfer.
SECTION 5.8 TRANSFER AGENTS AND REGISTRARS. The
------------------------------
Corporation may have one or more transfer agents and one or more
registrars of its stock, whose respective duties the board of
directors may, from time to time, define. No certificate of
stock shall be valid until countersigned by a transfer agent, if
the Corporation shall have a transfer agent, or until registered
11
by the registrar, if the Corporation shall have a registrar. The
duties of transfer agent and registrar may be combined.
ARTICLE VI
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INDEMNIFICATION
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SECTION 6.1 DIRECTORS AND OFFICERS. Subject to the
----------------------
other Sections of this Article VI, the Corporation shall, to the
fullest extent permitted by the laws of the State of Delaware and
the Corporation's certificate of incorporation as now or
hereafter in effect, (i) indemnify any person who was or is
threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether criminal, civil,
administrative or investigative (a "Proceeding"), by reason of
the fact that he or she is or was a director or officer of the
Corporation, or, by reason of the fact that such officer or
director is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust, association, or other
enterprise, against all liability and loss suffered and expenses
(including attorneys' fees), judgments, fines, ERISA excise taxes
or penalties, and amounts paid in settlement reasonably incurred
by him or her in connection with such Proceeding, including any
Proceeding by or on behalf of the Corporation; and (ii) advance
all reasonable expenses incurred by or on behalf of any such
person in connection with any Proceeding, whether prior to or
after final disposition of such Proceeding, upon receipt of an
undertaking by or on behalf of such director or officer to repay
such amount if it shall ultimately be determined that he or she
is not entitled to be indemnified by the Corporation under this
Article VI or otherwise.
SECTION 6.2 SUBROGATION. In the event of payment
-----------
under these bylaws, the indemnifying party or parties shall be
subrogated to the extent of such payment to all of the rights of
recovery of the indemnified person therefor, and such person
shall execute all papers required and shall do everything that
may be necessary to secure such rights, including the execution
of such documents necessary to enable the indemnifying party or
parties to effectively bring suit to enforce such rights.
SECTION 6.3 EFFECT OF CERTAIN PROCEEDINGS. The
-----------------------------
termination of any Proceeding or of any claim, issue or matter
therein, by judgment, order, settlement or conviction, or upon a
plea of nolo contendere or its equivalent, shall not (except as
otherwise expressly provided in these bylaws) of itself adversely
affect the right of any person to indemnification or create a
presumption that such person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to
the best interests of the Corporation or, with respect to any
criminal proceeding, that such person had reasonable cause to
believe that his conduct was unlawful.
SECTION 6.4 EXCEPTION TO RIGHT OF INDEMNIFICATION OR
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ADVANCEMENT OF EXPENSES. Notwithstanding any other provision of
-----------------------
these bylaws, no person shall be entitled to indemnification or
12
advancement of expenses under these bylaws with respect to any
Proceeding brought by such person, unless the bringing of such
Proceeding or making of such claim shall have been approved by
the board of directors.
SECTION 6.5 CONTRACT. The foregoing provisions of
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this Article VI shall be deemed to be a contract between the
Corporation and each director and officer who serves in such
capacity at any time while these bylaws are in effect, and any
repeal or modification thereof shall not affect any rights or
obligations then existing with respect to any state of facts then
or theretofore existing or any Proceeding theretofore or
thereafter brought based in whole or in part upon any such state
of facts. The foregoing rights of indemnification shall not be
deemed exclusive of any other rights to which any director or
officer may be entitled apart from the provisions of this
Article VI.
SECTION 6.6 INCLUSION OF SUBSIDIARIES AND
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CONSTITUENT CORPORATIONS. The board of directors may provide
------------------------
by resolution that references to "the Corporation" in this
Article VI shall include, in addition to this Corporation,
(i) any subsidiary of the Corporation now or hereinafter
organized under the laws of the State of Delaware and (ii)
any constituent corporation absorbed in a merger with this
Corporation so that any person who was a director or officer
of such constituent corporation or is or was serving at the
request of such constituent corporation as a director, employee,
or agent of another corporation, partnership, joint venture,
trust, association, or other entity shall stand in the same
position under the provisions of this Article VI with respect
to this Corporation as he would if he had served this Corporation
in the same capacity or is or was so serving such other entity at
the request of this Corporation, as the case may be.
SECTION 6.7 INUREMENT. The 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 a
director or officer and shall inure to the benefit of the heirs,
executors, and administrators of such person.
SECTION 6.8 EMPLOYEES AND AGENTS. To the same
--------------------
extent as it may do for a director or officer, the Corporation
may, in the discretion of the board of directors, indemnify and
advance expenses to a person who is not and was not a director or
officer of the Corporation but who is or was an employee or agent
of the Corporation.
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ARTICLE VII
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MISCELLANEOUS
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SECTION 7.1 SEAL. The board of directors may adopt
----
a seal which, when adopted, shall constitute the corporate seal
of the Corporation. The corporate seal may be used by causing it
or a facsimile thereof to be impressed or affixed or in any other
manner reproduced.
SECTION 7.2 FISCAL YEAR. The Corporation's fiscal
-----------
year shall end on December 31, unless the board of directors
otherwise determines.
SECTION 7.3 AMENDMENTS. Subject to the provisions
----------
of the certificate of incorporation, these bylaws may be altered,
amended or repealed at any regular meeting of the stockholders
(or at any special meeting thereof duly called for that purpose),
provided that in the notice of the special meeting, notice of
such purpose given. Subject to the laws of the State of
Delaware, the certificate of incorporation and the other
provisions of these bylaws, the board of directors may, by
majority vote of the entire board of directors alter, amend or
repeal these bylaws, or enact such other bylaws as in their
judgment may be advisable for the regulation of the conduct of
the affairs of the Corporation.
SECTION 7.4 MEANING OF CERTAIN TERMS. As used
------------------------
herein in respect of the right to notice of a meeting of
stockholders or a waiver thereof or to participate or vote
thereat or to consent or dissent in writing in lieu of a meeting,
as the case may be, the term "share" or "shares" or "stockholder"
or "stockholders" refers to an outstanding share or shares and to
a holder or holders of record of outstanding shares when the
Corporation is authorized to issue only one class of shares, and
said reference is also intended to include any outstanding share
or shares and any holder or holders of record of outstanding
shares of any class upon which or upon whom the articles of
incorporation confer such rights where there are two or more
classes or series of shares or upon which or upon whom the
Delaware General Corporation Law confers such rights
notwithstanding that the articles of incorporation may provide
for more than one class or series of shares, one or more of which
are limited or denied such rights thereunder.
SECTION 7.5 FORM OF RECORDS. Any records maintained
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by the Corporation in the regular course of its business,
including its stock ledger, books of account and minute books,
may be kept on, or be in the form of, punch cards, magnetic tape,
photographs, microphotographs or any other information storage
device, provided that the records so kept can be converted into
clearly legible form within a reasonable time. The Corporation
shall so convert any records so kept upon the request of any
person entitled to inspect the same.
SECTION 7.6 DIVIDENDS. Dividends upon the stock of
---------
the Corporation, subject to the provisions of the certificate of
incorporation, if any, may be declared by the board of directors
at any regular or special meeting, pursuant to law. Dividends
14
may be paid in cash, bonds, in property, or in shares of stock,
subject to the provisions of the certificate of incorporation.
SECTION 7.7 RESERVES. Before the payment of any
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dividend, there may be set aside out of any funds of the
Corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think
proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any
property of the Corporation, or for such other purposes as the
directors shall think conducive to the interest of the
Corporation, and the directors may modify or abolish any such
reserve.
SECTION 7.8 CHECKS. All checks or demands for money
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and notes of the Corporation shall be signed by such officer or
officers or such other person or persons as the board of
directors may from time to time designate.
SECTION 7.9 RULES OF ORDER. At any meeting of
--------------
stockholders or directors of the Corporation at which a question
of procedure arises, the person presiding at the meeting may rely
upon the Robert's Rules of Order, Newly Revised as then in effect
to resolve any such question.
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Secretary