EXHIBIT 3.2
LORAL SPACE & COMMUNICATIONS INC.
INCORPORATED UNDER THE LAWS OF
THE STATE OF DELAWARE
AMENDED AND RESTATED BYLAWS
ARTICLE I
OFFICES
Section 1. Registered Office and Agent. The registered office of Loral
Space & Communications Inc. (the "Corporation") shall be located in the State of
Delaware and shall be at such address as shall be set forth in the Restated
Certificate of Incorporation. The resident agent of the Corporation at such
address shall be as set forth in the Restated Certificate of Incorporation.
Section 2. Principal Office. The principal office for the transaction of
the business of the Corporation shall be at such location, within or without the
State of Delaware, as shall be designated by the board of directors of the
Corporation (the "Board of Directors").
Section 3. Other Offices. The Corporation may also have an office or
offices at such other place or places, either within or without the State of
Delaware, as the Board of Directors may from time to time determine or as the
business of the Corporation may otherwise require.
ARTICLE II
STOCKHOLDERS
Section 1. Annual Meeting. The annual meeting of stockholders for the
election of directors and the transaction of any other business properly brought
before the meeting will be held on such day in such month, in such city and
state and at such time and place as may be designated by the Board of Directors
and set forth in the notice of such meeting. If no designation is made, the
place of meeting shall be the principal executive office of the Corporation.
Section 2. Special Meetings. Special meetings of the stockholders for any
purpose may be called at any time by any three or more members of the Board of
Directors or by its Chairman, or by the Chief Executive Officer and President,
and will be called by the Chief Executive Officer and President at the request
of the holders of a majority in voting power of the outstanding shares of
capital stock generally entitled to vote. The officer or directors calling such
a meeting shall direct the Secretary of the Corporation to notify the directors
of the time, place and purpose of such meeting forthwith, but in any event not
less than five (5) days before
such notice is sent to the stockholders. Special meetings shall be held at such
place or places within or without the State of Delaware as shall from time to
time be designated by the Board of Directors and stated in the notice of such
meeting. If no designation is made, the place of meeting shall be the principal
executive office of the Corporation. At a special meeting, no business shall be
transacted and no corporate action shall be taken other than that stated in the
notice of the meeting.
Section 3. Notice of Meetings. Not less than ten (10) days nor more than
fifty (50) days before the date of every stockholder's meeting, the Secretary of
the Corporation shall give to each stockholder entitled to vote at such meeting
and each other stockholder entitled to notice of the meeting notice stating the
time and place of the meeting and, in the case of a special meeting, the purpose
or purposes for which the meeting is called, by mail, by presenting it to him or
her personally, by leaving it at his or her residence or usual place of business
or by any other lawful means. If mailed, such notice shall be deemed to be given
when deposited in the United States mail addressed to the stockholder at his or
her post office address as it appears on the records of the Corporation, with
postage thereon prepaid. Notice of any adjourned meeting need not be given
except by announcement at the meeting so adjourned, unless otherwise ordered in
connection with such adjournment or required by law.
Section 4. Waiver of Notice. Any stockholder may at any time, by writing
or by telegraph, cable, electronic transmission, or facsimile transmission,
waive any notice required to be given under these Bylaws. A stockholder's
attendance, in person or by proxy, at a meeting: (i) waives objection to lack of
notice or defective notice of the meeting, unless the stockholder or his proxy
attends the meeting for the express purpose of objecting at the beginning of the
meeting to holding the meeting or transacting business at the meeting because
the meeting is not lawfully called or convened; and (ii) waives objection to
consideration of a particular matter at the meeting that is not within the
purpose or purposes described in the meeting notice, unless the stockholder or
his proxy objects to considering the matter before it is voted upon.
Section 5. Notice 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 any
committee thereof 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 5 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 5.
(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 5, 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
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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 (90th) day, nor earlier than the close of business on
the one hundred twentieth (120th) 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 (30) days before or more than
seventy (70) days after such anniversary date, notice by the stockholder must be
so delivered not earlier than the close of business on the one hundred twentieth
(120th) day prior to such annual meeting and not later than the close of
business on the later of the ninetieth (90th) day prior to such annual meeting
or the tenth (10th) day following the day on which public announcement of the
date of such meeting is first made by the Corporation). For purposes of the
first annual meeting of stockholders of the Corporation, the first anniversary
of the preceding year's annual meeting shall be deemed to be one year from the
date of the filing of the Restated Certificate of Incorporation of the
Corporation, and the next annual meeting of the stockholders of the Corporation
shall take place not earlier than one (1) year from the date of filing of the
Restated Certificate of Incorporation of the Corporation. In no event shall the
public announcement of an adjournment or postponement of an annual meeting
commence a new time period (or extend any 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 as a director (i) all information relating to such person that is
required to be disclosed in solicitations of proxies for election of directors
in an election contest, or is otherwise required, in each case pursuant to and
in accordance with Regulation 14A under the Securities Exchange Act of 1934, as
amended (the "Exchange Act") and (ii) 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 foregoing notice requirements of this Section 5
shall be deemed satisfied by a stockholder if the stockholder has notified the
Corporation of his or her intention to present a proposal or nomination at an
annual meeting in compliance with applicable rules and regulations promulgated
under the Exchange Act and such stockholder's
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proposal or nomination has been included in a proxy statement that has been
prepared by the Corporation to solicit proxies for such annual meeting. 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 5 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 (100) days prior
to the first anniversary of the preceding year's annual meeting, a stockholder's
notice required by this Section 5 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 (10th) 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 of 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 5 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 5. 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 5 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 (120th) day
prior to such special meeting and not later than the close of business on the
later of the ninetieth (90th) day prior to such special meeting or the tenth
(10th) 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 5 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 5. Except as otherwise provided by law,
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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 5 (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
5) and (b) if any proposed nomination or business was not made or proposed in
compliance with this Section 5, to declare that such nomination shall be
disregarded or that such proposed business shall not be transacted.
Notwithstanding the foregoing provisions of this Section 5, unless otherwise
required by law, if the stockholder (or a qualified representative of the
stockholder) does not appear at the annual or special meeting of stockholders of
the Corporation to present a nomination or proposed business, such nomination
shall be disregarded and such proposed business shall not be transacted,
notwithstanding that proxies in respect of such vote may have been received by
the Corporation. For purposes of this Section 5, to be considered a qualified
representative of the stockholder, a person must be a duly authorized officer,
manager or partner of such stockholder or must be authorized by a writing
executed by such stockholder or an electronic transmission delivered by such
stockholder to act for such stockholder as proxy at the meeting of stockholders
and such person must produce such writing or electronic transmission, or a
reliable reproduction of the writing or electronic transmission, at the meeting
of stockholders.
(2) For purposes of this Section 5, "public announcement" shall include
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 5, 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 5. Nothing in this Section 5 shall be deemed to affect any
rights (a) of stockholders to request inclusion of proposals or nominations in
the Corporation's proxy statement pursuant to applicable rules and regulations
promulgated 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
Restated Certificate of Incorporation.
Section 6. Quorum. Any number of stockholders, together holding at least a
majority in voting power of the capital stock of the Corporation issued and
outstanding and generally entitled to vote in the election of directors, present
in person or represented by proxy at any meeting duly called, shall constitute a
quorum for the transaction of all business, except as otherwise provided by law,
by the Restated Certificate of Incorporation or by these Bylaws.
Section 7. Adjournment of Meetings. If less than a quorum is in attendance
at the time for which a meeting is called, the meeting may be adjourned by the
chairman of the meeting or by the affirmative vote of a majority of the voting
power of shares present in person or by proxy and entitled to vote at such
meeting, without notice other than announcement at such
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meeting, until a quorum is in attendance. Any meeting at which a quorum is
present may also be adjourned in like manner and for the amount of time as may
be determined by the chairman of the meeting or by the affirmative vote of a
majority of the voting power of shares present in person or by proxy and
entitled to vote at such meeting. At any adjourned meeting at which a quorum is
present, any business may be transacted and any corporate action may be taken
which might have been transacted at the meeting as originally called. If the
adjournment is for more than thirty (30) days, or if after the adjournment a new
record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the
meeting.
Section 8. Voting List. The Secretary of the Corporation will prepare and
make, at least ten (10) days before every election of directors, a complete list
of the stockholders entitled to vote, arranged in alphabetical order and showing
the address of each stockholder and the number of shares of each stockholder.
The list will be available for inspection by any stockholder of record as
required by applicable law.
Section 9. Voting. Each stockholder entitled to vote at a meeting of
stockholders may vote either in person or authorize another person or persons to
act for him or her by proxy, but no such proxy shall be voted or acted upon
after three (3) 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, regardless of whether the
interest with which it is coupled is an interest in the stock itself or an
interest in the Corporation generally. A stockholder may revoke any proxy which
is not irrevocable by attending the meeting and voting in person or by filing an
instrument revoking the proxy or another duly executed proxy bearing a later
date with the Secretary of the Corporation.
Except as otherwise provided by the General Corporation Law of the
State of Delaware as from time to time in effect, including any successor
provisions of law (the "DGCL"), or by the Restated Certificate of Incorporation
of the Corporation or any amendments thereto, every stockholder shall at every
meeting of the stockholders be entitled to one vote (or such other number of
votes as shall be provided in the Restated Certificate of Incorporation,
including any certificate of designation, with respect to any class or series of
stock) in person or by proxy for each share of common stock registered in his or
her name on the record of stockholders. At all meetings of stockholders, all
matters will be determined by the affirmative vote of the majority in voting
power of shares present in person or by proxy and entitled to vote on the
subject matter, except as otherwise provided by statute, applicable stock
exchange rules, any rule or regulations applicable to the Corporation or its
securities, the Restated Certificate of Incorporation, or these Bylaws and
except that directors shall be elected by a plurality vote. Voting at meetings
of stockholders need not be by written ballot.
Section 10. Conduct of Meetings. All regular or special meetings of the
stockholders shall be presided over by the Chairman of the Board, if any, or in
the absence of the Chairman of the Board by the Vice Chairman of the Board, if
any, or in the absence of the Vice Chairman of
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the Board by the Chief Executive Officer, or in the absence of the Chief
Executive Officer, by the President, or in the absence of the President 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. To the maximum extent permitted by law, the
presiding person will have the power to set procedural rules governing all
aspects of the conduct of the meetings, including, but not limited to, rules
respecting the time allotted to stockholders to speak. The Secretary of the
Corporation will act as secretary of each meeting. In the absence of the
Secretary, the chairman of the meeting will appoint any person to act as
secretary of the meeting.
Section 11. Inspectors. The Board of Directors may, in advance of any
meeting of stockholders, appoint one or more inspectors to act at such meeting
or any adjournment thereof. If any of the inspectors so appointed shall fail to
appear or act, the chairman of the meeting shall, or if inspectors shall not
have been appointed, the chairman of the meeting may (and when inspectors are
required under applicable law, shall), appoint one or more inspectors. Each
inspector, before entering upon the discharge of his duties, shall take and sign
an oath faithfully to execute the duties of inspector at such meeting with
strict impartiality and according to the best of his or her ability. The
inspectors shall determine (i) the number of shares of capital stock of the
Corporation outstanding and the voting power of each, (ii) the number of shares
represented at the meeting, (iii) the existence of a quorum, and (iv) the
validity and effect of proxies. The inspectors shall (a) receive votes, ballots,
or consents, (b) hear and determine all challenges and questions arising in
connection with the right to vote, (c) count and tabulate all votes, ballots, or
consents, (d) determine the results, and (e) do such acts as are proper to
conduct the election or vote with fairness to all stockholders. On request of
the chairman of the meeting, the inspectors shall make a report in writing of
any challenge, request, or matter determined by them and shall execute a
certificate of any fact found by them. No director or candidate for the office
of director shall act as an inspector of an election of directors. Inspectors
need not be stockholders.
Section 12. Certain Rules of Procedure Relating to Stockholder Meetings.
The chairman of the meeting shall preside over and conduct the meeting in a fair
and reasonable manner, and all questions of procedure or conduct of the meeting
shall be decided solely by the chairman of the meeting. The chairman of the
meeting shall have all power and authority vested in a presiding officer by law
or practice to conduct an orderly meeting. Among other things, the chairman of
the meeting shall have the power to (i) adjourn or recess the meeting, (ii)
silence or expel persons to ensure the orderly conduct of the meeting, (iii)
declare motions or persons out of order, (iv) prescribe rules of conduct and an
agenda for the meeting, (v) impose reasonable time limits on questions and
remarks by any stockholder, (vi) limit the number of questions a stockholder may
ask, (vii) limit the nature of questions and comments to one subject matter at a
time as dictated by any agenda for the meeting, (viii) limit the number of
speakers or persons addressing the chairman of the meeting or the meeting, (ix)
determine when the polls shall be closed, and (x) limit the attendance at the
meeting to stockholders of record, and the proxies of such record holders. All
stockholder meetings, annual or special, shall be governed in accordance with
the rules contained in this Section 12.
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ARTICLE III
DIRECTORS
Section 1. Qualifications. Directors of the Corporation need not be
stockholders or a resident of the State of Delaware. Each director must have
attained the age of majority.
Section 2. Change In Number. If the number of directors that constitutes
the whole Board of Directors is changed in accordance with the Restated
Certificate of Incorporation, the majority of the Board of Directors that adopts
the change shall also fix and determine the number of directors comprising each
class; provided, however, that any increase or decrease in the number of
directors shall be apportioned among the classes as equally as possible. No
decrease in the number of directors constituting the entire Board of Directors
shall have the effect of shortening the term of any incumbent director.
Section 3. Resignation of Directors. Any director may resign at any time
upon written notice or notice by electronic transmission to the Board of
Directors or to the Chief Executive Officer, the President or the Secretary 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.
Section 4. Regular Meetings. The Board of Directors will hold an annual
meeting for the purpose of organization and the transaction of any business
immediately after the annual meeting of the stockholders, provided a quorum of
directors is present. Other regular meetings may be held at any time as may be
determined from time to time by resolution of the Board of Directors.
Section 5. Special Meetings. Special meetings of the Board of Directors
may be called by any three or more members of the Board of Directors, the
Chairman of the Board of Directors or by the Chief Executive Officer or
President.
Section 6. Notice and Place of Meetings. Meetings of the Board of
Directors may be held at the principal office of the Corporation, or at any
other place as is stated in the notice of such meeting. Notice of any special
meeting, and except as the Board of Directors may otherwise determine by
resolution, notice of any regular meeting, will be mailed to each director
addressed to him or her at his residence or usual place of business at least two
(2) days before the day on which the meeting is to be held, or if sent to him or
her at such place by telegraph, cable, electronic transmission or facsimile, or
delivered personally or by telephone, not later than the day before the day on
which the meeting is to be held. No notice of the annual meeting of the Board of
Directors will be required if it is held immediately after the annual meeting of
the stockholders and if a quorum is present.
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Section 7. Waiver of Notice. Any director may at any time, by writing or
by telegraph, cable, electronic transmission, or facsimile transmission, waive
any notice required to be given under these Bylaws. If any director is present
at any meeting his or her presence will constitute a waiver of notice, unless
the director attends the meeting for the express purpose of objecting at the
beginning of the meeting to holding the meeting because the meeting is not
lawfully called or convened.
Section 8. Business Transacted at Meetings, etc. Any business may be
transacted and any corporate action may be taken at any regular or special
meeting of the Board of Directors at which a quorum is present, whether the
business or proposed action is stated in the notice of that meeting or not,
unless special notice of such business or proposed action is required by
statute.
Section 9. Quorum. Two-thirds of the total number of directors authorized
at the time will constitute a quorum. At any meeting at which a quorum is
present, except as otherwise provided in the Corporation's Restated Certificate
of Incorporation, each director shall have one vote and the vote of a majority
of the members present will be the act of the Board of Directors unless the act
of a greater number is specifically required by law or by the Restated
Certificate of Incorporation or these Bylaws. 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 10. Compensation. The directors will receive such compensation and
reimbursement as may be determined by the Board of Directors from time to time.
Members of special or standing committees of the Board of Directors may be
allowed such compensation as may be determined by the Board of Directors for
attending committee meetings. Nothing herein contained shall preclude any
director from serving the Corporation in any other capacity, as an officer,
employee, agent or otherwise, and receiving compensation therefor.
Section 11. Action Without a Meeting. Any action required or permitted to
be taken at any meeting of the Board of Directors, or of any committee of the
Board of Directors, may be taken without a meeting if all members of the Board
of Directors or committee, as the case may be, consent to the action in writing
or by electronic transmission, and the writing or writings or electronic
transmission or transmissions are filed with the minutes of the proceedings of
the Board of Directors or committee. Such filing shall be in paper form if the
minutes are maintained in paper form and shall be in electronic form if the
minutes are maintained in electronic form.
Section 12. Meetings Through Use of Communications Equipment. Members of
the Board of Directors, or any committee designated by the Board of Directors,
will, except as otherwise provided by law, the Restated Certificate of
Incorporation or these Bylaws, have the power to participate in a meeting of the
Board of Directors, or any committee, by means of a conference telephone or
other communications equipment by means of which all persons
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participating in the meeting can hear each other, and this participation will
constitute presence in person at the meeting.
Section 13. Organization. Meetings of the Board of Directors shall be
presided over by the Chairman of the Board, if any, or in the absence of the
Chairman of the Board by the Vice Chairman of the Board, if any, or in the
absence of the Vice Chairman of the Board by the Chief Executive Officer, or in
the absence of the Chief Executive Officer by the President or in the absence of
the foregoing persons by a chairman chosen at the meeting. The Secretary, or in
the absence of the Secretary, an Assistant Secretary shall act as secretary of
the meeting, but in the absence of the Secretary and any Assistant Secretary,
the chairman of the meeting may appoint any person to act as the secretary of
the meeting.
Section 14. Boards of Directors of Related Entities. So long as the
Corporation continues to own, directly or indirectly, a majority of the
outstanding capital stock entitled to vote generally at meetings of Space
Systems/Loral, Inc., a Delaware corporation ("SS/L"), and Loral Skynet
Corporation, a Delaware corporation ("Skynet"), the Corporation shall cause the
board of directors, chairman and vice chairman of the board of directors of each
of SS/L and Skynet to be the same as the Board of Directors, Chairman and Vice
Chairman of the Board of Directors of the Corporation at all times. Any
amendment of this Section 14 by the Board of Directors shall require the
affirmative vote of not less than seventy-five percent (75% ) of the Board of
Directors of the Corporation.
ARTICLE IV
COMMITTEES
Section 1. Audit Committee. The Board of Directors shall designate the
directors to constitute an Audit Committee. The composition, responsibilities
and procedures of the Audit Committee shall be as set forth in the Audit
Committee Charter, as in effect from time to time pursuant to the resolution of
the Board of Directors. Any member of the Audit Committee may be removed at any
time, with or without cause, by a resolution of the Board of Directors. Any
person ceasing to be a director shall ipso facto cease to be a member of the
Audit Committee. Any vacancy in the Audit Committee occurring from any cause
whatsoever may be filled from among the directors by a resolution of the Board
of Directors.
Section 2. Executive Committee. The Board of Directors shall designate the
directors to constitute an Executive Committee of at least three (3) members.
The Executive Committee shall include the Chairman and Vice Chairman of the
Board of Directors and the Vice Chairman of the Board of Directors shall serve
as the Chairman of the Executive Committee. The members of the Executive
Committee shall hold office for a term and have such powers and perform such
duties as may from time to time be determined or assigned to them, as
applicable, by the Board of Directors. Any member of the Executive Committee may
be removed at any time, with or without cause, by a resolution of the Board of
Directors. Any person ceasing to be a director shall ipso facto cease to be a
member of the Executive
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Committee. Any vacancy in the Executive Committee occurring from any cause
whatsoever may be filled from among the directors by a resolution of the Board
of Directors.
Section 3. Other Committees. Other committees may be appointed by the
Board of Directors, which committees shall hold office for an amount of time and
have powers and perform duties as may from time to time be assigned to them by
the Board of Directors. 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.
Section 4. Alternate Members of Committees. The Board of Directors may
designate one or more directors as alternate members of any committee. Any such
alternate member may replace any absent or disqualified member at any meeting of
the committee. If no alternate committee members have been so appointed to a
committee or each such alternate committee member is absent or disqualified, the
member or members of such committee present at any meeting and not disqualified
from voting, whether or not he or they constitute a quorum, may unanimously
appoint another member of the Board of Directors to act at the meeting in the
place of any such absent or disqualified member.
Section 5. Committee Rules. Each committee of the Board of Directors may
adopt, amend and repeal rules for the conduct of its business and shall hold its
meetings as provided by such rules, except as may otherwise be provided by a
resolution of the Board of Directors designating such committee and subject to
the rules and regulations of the principal stock exchange or securities market
on which the Corporation's stock is listed or traded.
Section 6. Resignation and Removal. Any member of a committee may resign
at any time. This resignation shall be made in writing or by electronic
transmission and will take effect at the time specified in the resignation, or,
if no time is specified, at the time of its receipt by the Chairman of the Board
of Directors, Chief Executive Officer, President or Secretary. The acceptance of
a resignation will not be necessary to make it effective unless so specified in
the resignation.
Any member of a committee may be removed at any time, with or
without cause, by the Board of Directors. Any vacancy in a committee occurring
from any cause whatsoever may be filled by the Board of Directors.
Section 7. Quorum. In the absence of a provision by the Board or a
provision in the rules of such committee to the contrary, a majority of the
members of a committee shall constitute a quorum. The act of a majority of the
members of a committee present at any meeting at which a quorum is present will
be the act of the committee.
Section 8. Record of Proceedings, etc. Each committee will keep a record
of its acts and proceedings, and will report the same to the Board of Directors
when and as required by the Board of Directors.
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Section 9. Organization, Meetings, Notices, etc. Regular meetings of any
committee may be held without notice at such time and place as may be designated
from time to time by resolution by the committee and communicated to all members
thereof. Special meetings of any committee may be held whenever called by any
committee member. Unless otherwise ordered by the Board of Directors, any notice
of a meeting of a committee may be given by the Secretary of the Corporation or
by the chairman of the committee and will be sufficient if mailed to each member
at his residence or usual place of business at least two (2) days before the day
on which the meeting is to be held, or if sent to him or her at that place by
telegraph, cable, electronic transmission or facsimile, or delivered personally
or by telephone not later than twenty-four (24) hours before the time at which
the meeting is to be held.
Section 10. Compensation. The members of any committee will be entitled to
such compensation as may be allowed them by resolution of the Board of
Directors.
ARTICLE V
OFFICERS; CHAIRMAN AND VICE CHAIRMAN
Section 1. Number. The officers of the Corporation shall be a Chief
Executive Officer, a President, and may include a Chief Financial Officer, one
or more Vice Presidents, a Secretary, one or more Assistant Secretaries, a
Treasurer, and one or more Assistant Treasurers, and such other officers as may
be appointed in accordance with the provisions of Section 3 of this Article V.
The Board of Directors in its discretion may also elect a Chairman and a Vice
Chairman of the Board of Directors, each of which, in the Board of Directors'
discretion, may also be an officer of the Corporation. Notwithstanding anything
to the contrary in these Bylaws, the Board of Directors shall not elect a
Chairman of the Board of Directors unless it shall also have elected a Vice
Chairman of the Board of Directors. In its discretion, the Board of Directors
may choose not to fill any office for any period as it may deem advisable,
except that the offices of President and Secretary shall be filled as
expeditiously as possible. New offices may be created and filled at any meeting
of the Board of Directors. The initial Chairman of the Board of Directors shall
be Bernard L. Schwartz and the initial Vice Chairman of the Board of Directors
shall be Michael B. Targoff, who shall not be an officer of the Corporation.
Section 2. Election, Term of Office and Qualifications. The officers,
except as provided in Section 3 of this Article V, will be chosen annually by
the Board of Directors. Each officer will, except as otherwise provided in the
Bylaws, hold office until his successor is chosen and qualified or until his or
her earlier death, incapacity, resignation or removal as hereinafter provided.
Except as otherwise provided by law, any number of offices may be held by the
same person.
Section 3. Other Officers. Other officers, including one or more
additional Vice Presidents, Assistant Secretaries or Assistant Treasurers, may
from time to time be appointed by the Board of Directors or an officer or
committee of the Corporation vested with such authority, which other officers
shall have powers and perform duties as may be assigned to them by the Board of
Directors or the officer or committee appointing them.
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Section 4. Removal of Officers. Any officer of the Corporation may be
removed from office, with or without cause, by the Board of Directors whenever
in its judgment the best interests of the Corporation would be served thereby,
but such removal shall be without prejudice to the contract rights, if any, of
the person so removed, but the election of an officer shall not of itself create
contractual rights.
Section 5. Resignation. Any officer of the Corporation may resign at any
time. This resignation shall be in writing or by electronic transmission and
take effect at the time specified in the resignation, or if no time is
specified, at the time of its receipt by the Chief Executive Officer, President
or Secretary. The acceptance of a resignation shall not be necessary in order to
make it effective, unless so specified in the resignation.
Section 6. Filling of Vacancies. A vacancy in any office will be filled by
the Board of Directors or by the authority appointing the predecessor in such
office.
Section 7. Compensation. The compensation of the officers will be fixed by
the Board of Directors, or by any committee upon whom power in that regard may
be conferred by the Board of Directors.
Section 8. Chairman of the Board. The Chairman of the Board of Directors,
if any, will be a director of the Corporation, and should he or she cease to be
a director, he or she shall ipso facto cease to be Chairman. The Chairman of the
Board, if any, shall have power to call special meetings of the stockholders or
of the Board of Directors at any time. The Chairman of the Board, if any, shall
preside at all meetings of the Board of Directors and of the stockholders at
which he or she shall be present and shall have and may exercise such powers as
may, from time to time, be assigned to him or her by the Board of Directors or
as may be provided by law. A director who is not otherwise an officer of the
Corporation who is elected to be Chairman of the Board of Directors shall not be
deemed an officer of the Corporation by virtue of such election.
Section 9. Vice Chairman of the Board. The Vice Chairman of the Board, if
any, shall preside at all meetings of the Board of Directors and of the
stockholders at which the Chairman of the Board is not present. The Vice
Chairman of the Board shall have and may exercise such powers as may, from time
to time, be assigned to him or her by the Board of Directors or as may be
provided by law. A director who is not otherwise an officer of the Corporation
who is elected to be Vice Chairman of the Board of Directors shall not be deemed
an officer of the Corporation by virtue of such election. Without limitation to
any other provision in these Bylaws, the Vice Chairman shall have (i) full
access to all information as the Vice Chairman shall request relating to the
Corporation's business and operations and, following notification to the Chief
Executive Officer, all employees of the Corporation and its subsidiaries; and
(ii) the right to bring any matter to the attention of the Board of Directors
for its consideration.
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Section 10. Chief Executive Officer. The Chief Executive Officer shall
have power to call special meetings of the stockholders or of the Board of
Directors at any time. He or she shall be the chief executive officer of the
Corporation, and shall have the general direction of the business, affairs and
property of the Corporation, and of its several officers, and shall have and
exercise all the powers and discharge the duties as usually pertain to the
office of Chief Executive Officer.
Section 11. President. The President shall have power to call special
meetings of the stockholders or of the Board of Directors at any time. He or she
shall assist the Chief Executive Officer (and, in the Chief Executive Officer's
absence, act as Chief Executive Officer) in the general direction of the
business, affairs and property of the Corporation, and of its several officers,
and shall have and exercise all the powers and discharge the duties as usually
pertain to the office of President, subject to the direction of the Chief
Executive Officer.
Section 12. Vice Presidents. The Vice Presidents, or any of them, shall,
subject to the direction of the Board of Directors, at the request of the Chief
Executive Officer or in the absence of both the Chief Executive Officer and the
President, or in case of their inability to perform their duties from any cause,
perform the duties of the Chief Executive Officer and, when so acting, shall
have all the powers of, and be subject to all restrictions upon, the Chief
Executive Officer. There shall be no duties that are incident to the office of
Vice President, other than those which are specifically assigned by the Board of
Directors, the President or the Chief Executive Officer.
Section 13. Chief Financial Officer. Subject to the direction of the Board
of Directors, the Chief Executive Officer and the President, the Chief Financial
Officer shall be responsible for the financial affairs of the Corporation and
shall have and exercise all the powers and discharge the duties as usually
pertain to the office of Chief Financial Officer.
Section 14. Secretary. The Secretary shall keep the minutes of all
meetings of the stockholders and all meetings of the Board of Directors and any
committee in books provided for that purpose. Under the supervision of the Chief
Executive Officer and the President, the Secretary shall give, or cause to be
given, all notices required to be given by these Bylaws. The Secretary, or an
Assistant Secretary, shall have authority to affix the corporate seal to any
instrument requiring it and when so affixed, it may be attested by his or her
signature or by the signature of such Assistant Secretary. 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 his or her signature. The
Assistant Secretary, or if there be more than one (1), the Assistant Secretaries
in the order determined by the Board of Directors, shall, in the absence or
disability of the Secretary, perform the duties and exercise the powers of the
Secretary and shall perform such other duties and have such other powers as the
Board of Directors, the President or the Chief Executive Officer may, from time
to time, prescribe. The Secretary shall perform the duties and have all other
powers that are incident to the office of Secretary, or as may from time to time
be assigned to him or her by the Board of Directors, or as are prescribed by
these Bylaws.
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Section 15. Treasurer. The Treasurer shall have custody of all the funds
and securities of the Corporation which may be delivered into his or her
possession. He or she may endorse on behalf of the Corporation for collection,
checks, notes and other obligations and shall deposit the same to the credit of
the Corporation in a depository or depositories of the Corporation, and may sign
all receipts and vouchers for payments made to the Corporation. He or she shall
enter or cause to be entered regularly in the books of the Corporation kept for
that purpose, full and accurate accounts of all monies received and paid on
account of the Corporation and whenever required by the Board of Directors will
render statements of the accounts. The Treasurer shall perform the duties and
have all other powers that are incident to the office of Treasurer or that are
assigned to him or her by the Board of Directors.
Section 16. Other Officers, Assistant Officers and Agents. Officers and
assistant officers, other than those whose duties are provided for in these
Bylaws, shall have such authority and perform such duties as may from time to
time be prescribed by resolution of the Board of Directors which is not
inconsistent with these Bylaws.
ARTICLE VI
CAPITAL STOCK
Section 1. Issue of Certificates of Stock. Certificates of capital stock
shall be in the form approved by the Board of Directors. The certificates shall
be numbered in the order of their issue and shall be signed by the Chairman of
the Board, or the President or a Vice President, and by the Treasurer or an
Assistant Treasurer, or the Secretary or an Assistant Secretary, and the seal of
the Corporation or a facsimile of the seal shall be impressed or affixed or
reproduced on the certificates, provided, however, that (i) the signature of the
Chairman of the Board, President, Vice President, Secretary, Assistant
Secretary, Treasurer or Assistant Treasurer may be facsimile and (ii) if such a
certificate is manually signed by one officer or manually countersigned (a) by a
transfer agent or an assistant transfer agent other than the Corporation or its
employee or (b) by a registrar, other than the Corporation or its employee, any
other signatures on the certificate may be facsimiles. In case any officer or
officers who have signed, or whose facsimile signature or signatures have been
used on any certificate or certificates ceases to be an officer of the
Corporation, whether because of death, resignation or otherwise, before that
certificate or certificates are delivered by the Corporation, that certificate
or certificates may nevertheless be adopted by the Corporation and be issued and
delivered as though the person or persons who signed that certificate or
certificates, or whose facsimile signature or signatures is used thereon have
not ceased to be an officer or officers of the Corporation.
Section 2. Registration and Transfer of Shares. The shares of capital
stock of the Corporation shall be issued in registered form. The name of each
person owning a share of the capital stock of the Corporation shall be entered
on the books of the Corporation together with the number of shares held by him,
the numbers of the certificates covering such shares and the dates of issue of
such certificates. The shares of stock of the Corporation shall be transferable
on the books of the Corporation by the holders thereof in person, or by their
attorneys or legal representatives duly authorized in writing, on surrender and
cancellation of certificates for a like
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number of shares, accompanied by an assignment or power of transfer endorsed
thereon or attached thereto, duly executed, and with such proof of the
authenticity of the signature as the Corporation or its agents may reasonably
require, and accompanied by any necessary stock transfer stamps. A record shall
be made of each transfer.
Section 3. Lost, Destroyed and Mutilated Certificates. The holder of any
stock of the Corporation shall immediately notify the Corporation of any loss,
theft, destruction or mutilation of the certificates. The Corporation may issue
a new certificate of stock in the place of any certificate previously issued by
it and alleged to have been lost, stolen or destroyed, and the Board of
Directors may, in its discretion, require the owner of the lost, stolen or
destroyed certificate, or his legal representatives, to give the Corporation a
bond, in such sum and with such surety or sureties as it may require, to
indemnify it against any claim that may be made against it by reason of the
issue of the new certificate and against all other liability in the premises, or
may remit the owner to any remedy or remedies he or she may have under the laws
of the State of Delaware.
Section 4. Transfer Agent and Registrar; Regulations. The Corporation
shall, if and whenever the Board of Directors shall so determine, maintain one
or more transfer offices or agencies, each in the charge of a transfer agent
designated by the Board of Directors, where the shares of the capital stock of
the Corporation shall be directly transferable, and also one or more registry
offices, each in the charge of a registrar designated by the Board of Directors,
where such shares of stock shall be registered, and no certificate for shares of
the capital stock of the Corporation, in respect of which a Registrar and/or
Transfer Agent shall have been designated, shall be valid unless countersigned
by such Transfer Agent and registered by such Registrar, if any. The Board of
Directors shall also make such additional rules and regulations as it may deem
expedient concerning the issue, transfer and registration of certificates for
shares of the capital stock of the Corporation.
Section 5. Beneficial Owners. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends and to vote as such owner, and the Corporation
may hold liable for calls and assessments a person registered on its books as
the owner of shares, and shall not be bound to recognize any equitable or other
claim to or interest in such shares on the part of any other person, whether or
not the Corporation shall have express or other notice thereof, except as
otherwise provided by law.
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 1. Fiscal Year. The fiscal year of the Corporation shall be the
calendar year unless another fiscal year is fixed by resolution of the Board of
Directors.
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Section 2. Corporate Seal. The corporate seal will be in the form approved
by the Board of Directors and may be altered at its pleasure. The corporate seal
may be used by causing it or a facsimile of the seal to be impressed or affixed
or reproduced or otherwise.
Section 3. Notices. Subject to the requirements of applicable law, any
notice required to be given by these Bylaws will be sufficient if given by (i)
depositing the same in a post office or letter box in a sealed postpaid wrapper
addressed to the person entitled to the notice at his or her address, as the
same appears upon the books of the Corporation, (ii) telegraphing or cabling the
same to that person at that address, (iii) electronically transmitting to an
email address designated upon the books of the Corporation, if any, (iv)
facsimile transmission to a number designated upon the books of the Corporation,
if any, or (v) any other lawful means; and the notice will be deemed to be given
at the time it is mailed, telegraphed, cabled, electronically transmitted, sent
by facsimile or sent by such other lawful means.
Section 4. Checks, Drafts, etc. All checks, drafts or other orders for the
payment of money, notes or other evidences of indebtedness issued in the name of
the Corporation shall be signed by an officer or officers, or agent or agents of
the Corporation, and in such manner, as shall from time to time be designated by
resolution of the Board of Directors.
Section 5. Deposits. All funds of the Corporation will be deposited from
time to time to the credit of the Corporation in a bank or banks, trust
companies or other depositories as the Corporation may select, and, for the
purpose of the deposit, checks, drafts, warrants and other orders for the
payment of money which are payable to the order of the Corporation, may be
endorsed for deposit, assigned and delivered by any officer of the Corporation,
or by agents of the Corporation as the Board of Directors, the Chief Executive
Officer or the President may authorize for that purpose.
Section 6. Voting Securities of Other Entities. Except as otherwise
ordered by the Board of Directors, any of the Chief Executive Officer, the
President and the Treasurer shall have full power and authority on behalf of the
Corporation to attend and to act and to vote at any meeting of the holders of
securities of any entity of which the Corporation is a securityholder, and to
execute a proxy to any other person to represent the Corporation at any meeting,
and at any meeting of the holders of securities of any entity of which the
Corporation is a securityholder. The Chief Executive Officer, the President or
the Treasurer or the holder of any proxy, as the case may be, shall possess and
may exercise any and all rights and powers incident to ownership of the security
which the Corporation might have possessed and exercised if present. The Board
of Directors may from time to time confer like powers upon any other person or
persons.
Section 7. Inconsistent Provisions. In the event that any provision of
these Bylaws is or becomes inconsistent with any provision of the Restated
Certificate of Incorporation, the DGCL or any other applicable law, the
provision of these Bylaws shall not be given any effect to the extent of such
inconsistency but shall otherwise be given full force and effect.
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Section 8. References. Whenever herein the singular number is used, the
same shall include the plural where appropriate, and words of any gender should
include each other gender where appropriate.
ARTICLE VIII
AMENDMENTS
Except as otherwise provided herein, these Bylaws may be altered,
amended, or repealed or new Bylaws may be adopted by the Board of Directors at
any regular meeting of the Board of Directors or at any special meeting of the
Board of Directors, whether the proposed alteration, amendment, repeal or
addition is stated in the notice of that meeting or not, unless special notice
of such alteration, amendment, repeal or addition is required by statute. In
addition to any affirmative vote of the holders of any particular class or
series of the capital stock of the Corporation required by law or by the
Restated Certificate of Incorporation, the affirmative vote of the holders of
not less than eighty percent (80%) in voting power of the outstanding shares of
the Corporation then entitled to vote upon the election of directors generally,
voting together as a single class, shall be required for the alteration,
amendment, or repeal of the Bylaws or adoption of new Bylaws by the stockholders
of the Corporation.
Dated: November 21, 2005
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