EXHIBIT 3.2
ORBCOMM INC.
(Delaware)
AMENDED AND RESTATED BY-LAWS
ARTICLE ONE
STOCKHOLDERS
SECTION 1.1. Annual Meeting. An annual meeting of stockholders for the
election of directors and for the transaction of such other business as may
properly be presented at the meeting shall be held on such date and at such time
as may from time to time be designated by resolution duly adopted by the Board
of Directors, at such place (within or without the State of Delaware) as the
Board of Directors, the Chairman of the Board, the Executive Committee, if any,
or the Chief Executive Officer may fix.
SECTION 1.2. Special Meetings. A special meeting of stockholders may
be called for any proper purpose, notice of which was given in the notice of
meeting, at any time by the Board of Directors, the Chairman of the Board, the
Executive Committee, if any, or the Chief Executive Officer and shall be called
by any of them or by the Secretary upon receipt of a written request to do so
specifying the matter or matters, appropriate for action at such a meeting, that
are proposed to be presented at the meeting, signed by holders of record of at
least twenty five percent (25%) of the shares of stock that would be entitled to
be voted on such matter or matters if the meeting were held on the day such
request is received and the record date for such meeting were the close of
business on the preceding day. Any such meeting shall be held on such date, at
such time and at such place, within or without the State of Delaware, as shall
be determined by the body or person calling such meeting and as shall be stated
in the notice of such meeting.
SECTION 1.3. Notice of Meeting. For each meeting of stockholders
written notice shall be given stating the place, date and hour and, in the case
of a special meeting, the purpose or purposes for which the meeting is called
and, if other than the place where the meeting is to be held, the place within
the city in which the meeting is to be held (where the list of stockholders
required by Section 1.10 is to be open for examination) at least 10 days prior
to the meeting. Except as otherwise provided by Delaware law, the written notice
of any meeting shall be given not less than 5 nor more than 60 days before the
date of the meeting to each stockholder entitled to vote at such meeting. If
mailed, notice shall be deemed to be given when deposited in the United States
mail, postage prepaid, directed to the stockholder at his address as it appears
on the records of the Corporation.
SECTION 1.4. Quorum. Except as otherwise required by law or in the
Certificate of Incorporation, the holders of record of a majority of the shares
of stock
entitled to be voted present in person or represented by proxy at a meeting
shall constitute a quorum for the transaction of business at the meeting, but,
in the absence of a quorum, the holders of record present in person or
represented by proxy at such meeting may vote to adjourn the meeting from time
to time until a quorum is obtained.
SECTION 1.5. Presiding Officer and Secretary at Meetings. Each meeting
of stockholders shall be presided over by the Chairman of the Board or, in his
absence, by the President or, if neither is present, by the person designated in
writing by the Chairman of the Board or, if no such person is present, then by a
person designated by the Board of Directors; if no such person is present, then
the stockholders at the meeting present in person or represented by proxy shall
by plurality vote elect a person to act as chairman of the meeting. The
Secretary, or in his absence an Assistant Secretary, shall act as secretary of
the meeting, or, if no such officer is present, a secretary of the meeting shall
be designated by the chairman of the meeting.
SECTION 1.6. Voting. Except as otherwise provided by law or in the
Certificate of Incorporation, and subject to the provisions of Section 1.11:
(a) each stockholder of record shall be entitled at every meeting
of stockholders to one vote for each share standing in his name on the
books of the Corporation;
(b) each matter, other than election of directors, properly
presented to any meeting, shall be decided by a majority of the votes cast
on the matter; and
(c) election of directors and the vote on any other matter
presented to a meeting shall be by written ballot only if so ordered by the
chairman of the meeting or if so requested by any stockholder at the
meeting present in person or represented by proxy entitled to vote in such
election or on such matter, as the case may be.
SECTION 1.7. Proxies. 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.
SECTION 1.8. Adjourned Meetings. A meeting of stockholders may be
adjourned to another time or place as provided in Sections 1.4. Unless the Board
of Directors fixes a new record date, stockholders of record for an adjourned
meeting shall be as originally determined for the meeting from which the
adjournment was taken. If the adjournment is for more than 30 days, or if after
the adjournment a new record date is fixed for the adjourned meeting, a notice
of the adjourned meeting shall be given to each stockholder of record entitled
to vote at the meeting. At the adjourned meeting, provided a quorum is present,
any business may be transacted that might have been transacted at the meeting as
originally called.
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SECTION 1.9. Consent of Stockholders in Lieu of Meeting. Any action
that may be taken at any annual or special meeting of stockholders may be taken
without a meeting, without prior notice and without a vote, if one or more
consents in writing, setting forth the action so taken and 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, are delivered to the
Corporation, to its principal place of business or to an officer or agent of the
Corporation having custody of the book in which proceedings of meetings of
stockholders are recorded. Every consent shall bear the date of signature of
each stockholder signing the consent and no written consent shall be effective
to take the corporate action referred to therein unless written consents signed
by a sufficient number of stockholders to take the action are delivered to the
Corporation, in the manner required by law, within 60 days of the earliest dated
consent so delivered.
SECTION 1.10. List of Stockholders Entitled to Vote. A complete list
of the stockholders entitled to vote at every meeting of stockholders, arranged
in alphabetical order and showing the address of each stockholder and the number
of shares registered in the name of each stockholder, shall be prepared and
shall be open to the examination of any stockholder as required by law. Such
list shall be produced and kept at the time and place of the meeting during the
whole time thereof and may be inspected by any stockholder who is present.
SECTION 1.11. Fixing of Record Date. The Board of Directors, by
resolution, may fix a date for determining the stockholders of record, which
record date shall not be earlier than the date of such resolution. The record
date shall be determined as follows:
(a) The record date for stockholders entitled to notice of or to
vote at any meeting of stockholders or any adjournment thereof shall not be
more than 60 nor less than 10 days before the date of the meeting. If no
such record date is fixed by the Board of Directors, the record date shall
be the close of business on the day immediately preceding the day on which
notice is given, or, if notice is waived, at the close of business on the
day immediately preceding the day on which the meeting is held. The record
date shall apply to any adjournment of the meeting unless the Board of
Directors fixes a new record date for the adjourned meeting.
(b) 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. If no such record date is fixed
by the Board of Directors, the record date shall be determined as follows:
(i) if no prior action by the Board of Directors is required
under the Delaware General Corporation Law, the record date shall be
the first date on which a signed written consent setting forth the
action taken or
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proposed to be taken is delivered to the Corporation pursuant to the
requirements of Section 1.9; and
(ii) if prior action by the Board of Directors is required
under the Delaware General Corporation Law, the record date shall be
the close of business on the day on which the Board of Directors
adopts a resolution taking such prior action.
(c) The record date for determining the stockholders entitled to
receive payment of any dividend or other distribution or allotment of any
rights or the stockholders entitled to exercise any rights in respect of
any change, conversion or exchange of stock, or for the purpose of any
other lawful action, shall be not more than 60 days prior to such action.
If no such record date is fixed by the Board of Directors, the record date
for determining stockholders for any such purpose shall be the close of
business on the day on which the Board of Directors adopts the resolution
relating to such purpose.
ARTICLE TWO
DIRECTORS
SECTION 2.1. General Powers. The business and affairs of the
Corporation shall be managed by or under the direction of the Board of
Directors.
SECTION 2.2. Number; Term of Office. Subject to the provisions of the
Certificate of Incorporation, the number of directors that shall constitute the
whole Board of Directors shall be ten (10) members. Subject to the provisions of
the Certificate of Incorporation, directors shall be elected at the annual
meeting of stockholders to hold office, subject to Sections 2.3 and 2.4, until
the next annual meeting of stockholders and until their respective successors
are elected and qualified.
SECTION 2.3. Resignation. Any director of the Corporation may resign
at any time by giving written notice of such resignation to the Board of
Directors, the Chief Executive Officer or the Secretary of the Corporation. Any
such resignation shall take effect at the time specified therein or, if no time
is specified, upon receipt thereof by the Board of Directors or one of the
above-named officers. Unless specified therein, the acceptance of such
resignation shall not be necessary to make it effective. When one or more
directors shall resign from the Board of Directors effective at a future date
his or hers successor shall be elected by the Stockholders of the Corporation in
accordance with the Certificate of Incorporation.
SECTION 2.4. Removal. Subject to the provisions of the Certificate of
Incorporation, any one or more directors may be removed, with or without cause,
by the Stockholders of the Corporation entitled to vote on the election of such
director in accordance with the Certificate of Incorporation.
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SECTION 2.5. Vacancies; Newly Created Directorships. Vacancies and
newly created directorships resulting from any increase in the authorized number
of directors may be filled by a vote of Stockholders of the Corporation in
accordance with the Certificate of Incorporation, and the directors so chosen
shall hold office, subject to Sections 2.3 and 2.4, until the next annual
meeting of stockholders and until their respective successors are elected and
qualified.
SECTION 2.6. Regular and Annual Meetings; Notice. Regular meetings of
the Board of Directors shall be held at such time and at such place (within or
without the State of Delaware) as the Board of Directors may from time to time
prescribe. At the first meeting of the Board of Directors in each calendar year,
or at such other time as the Board of Directors may determine, the Board of
Directors shall establish a calendar of at least four (4) regular meetings of
the Board of Directors at approximately regular intervals in each twelve (12)
monthly period, and unless the Board of Directors otherwise determines, shall
meet at least four (4) times in each twelve (12) monthly period. Meetings held
in the U.S. shall be scheduled to start not later than 9:00 a.m. U.S. eastern
standard time to facilitate participation by directors located in Europe, and,
to the extent practicable, meetings shall be held on Mondays and Fridays to
facilitate in-person attendance by directors. Notice of any regular meeting of
the Board of Directors, need not specify the purposes thereof. A meeting of the
Board of Directors may be held without notice immediately after an annual
meeting of stockholders at the same place as that at which such meeting was
held.
SECTION 2.7. Special Meetings; Notice. A special meeting of the Board
of Directors may be called at any time by the Board of Directors, the Chairman
of the Board, the Executive Committee, if any, the Chief Executive Officer or
any person acting in the place of the Chief Executive Officer and shall be
called by any one of them or by the Secretary upon receipt of a written request
to do so specifying the matter or matters, appropriate for action at such a
meeting, proposed to be presented at the meeting and signed by at least two
directors. Any such meeting shall be held at such time and at such place (within
or without the State of Delaware) as shall be determined by the body or person
calling such meeting. Notice of such meeting stating the time and place thereof
shall be given (a) by deposit of the notice in the United States mail, first
class, postage prepaid, at least seven days before the day fixed for the
meeting, or by recognized express courier at least two days before the date
fixed for the meeting, addressed to each director at his address as it appears
on the Corporation's records or at such other address as the director may have
furnished the Corporation for that purpose, or (b) by delivery of the notice
similarly addressed for dispatch by telex, telecopy, electronic mail, telegraph,
cable or radio or by delivery of the notice by telephone or in person, in each
case at least 24 hours before the time fixed for the meeting.
SECTION 2.8. Presiding Officer and Secretary at Meetings. Each meeting
of the Board of Directors shall be presided over by the Chairman of the Board,
who shall be the Chief Executive Officer, unless another person has been
appointed to that position by a majority of the Board of Directors, or in his
absence by such member of the Board of Directors as shall be chosen by a
majority of the directors present. The Secretary, or in his absence an Assistant
Secretary, shall act as secretary of the meeting, or if no such officer is
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present, a secretary of the meeting shall be designated by the person presiding
over the meeting.
SECTION 2.9. Quorum; Voting. A majority of the whole Board of
Directors shall constitute a quorum for the transaction of business, but in the
absence of a quorum a majority of those present (or if only one be present, then
that one) may adjourn the meeting, without notice other than announcement at the
meeting, until such time as a quorum is present. Except as otherwise required by
law or the Certificate of Incorporation, the vote of a majority of the directors
present at a meeting at which a quorum is present shall be the act of the Board
of Directors.
SECTION 2.10. Meeting by Telephone. Members of the Board of Directors
or of any committee thereof may participate in meetings of the Board of
Directors or of such committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and such participation shall constitute presence in
person at such meeting.
SECTION 2.11. Action Without Meeting. Any action required or permitted
to be taken at any meeting of the Board of Directors thereof may be taken
without a meeting upon unanimous written approval of the Board of Directors or
such lower proportion as may be permitted by the Delaware General Corporation
Law, as then in effect. A copy of any such unanimous written consent of the
Board of Directors shall be filed on the minutes book of the Corporation.
SECTION 2.12. Executive and Other Committees. (a) The Board of
Directors may, by resolution passed by a majority of the whole Board of
Directors, designate a Compensation Committee, an Audit Committee and such other
committees, as the Board of Directors may from time to time determine. Any such
committee may have and exercise such powers and authority in the management of
the business and affairs of the Corporation as the Board of Directors provides
in such resolution or resolutions; provided that, (i) the Compensation Committee
shall make recommendations as to compensation decisions of all officers,
directors and employees of the Corporation and any affiliate of which
Corporation owns a controlling interest, including the grant of stock options;
and provided further, that the authority of Committees of the Board of Directors
shall be limited to making recommendations to the Board of Directors and shall
not have authority to act on behalf of the Board of Directors or the
Corporation. The grant of any stock options by the Corporation shall be made
only upon the recommendation of the Compensation Committee, if any, and approval
by the Board of Directors.
(b) The Compensation Committee shall consist of three (3) directors,
two (2) of whom shall be appointed by a majority of the directors appointed by
the holders of the Corporation's Series A Preferred Stock and Series B Preferred
Stock voting as a single class (which shall be one of the directors appointed by
PCG Satellite Investments, LLC ("PCG") and one of the directors appointed by
Ridgewood Satellite LLC ("Ridgewood") unless PCG and/or Ridgewood shall agree
otherwise) and one (1) of whom shall be appointed by a majority of the directors
appointed by the holders of the Corporation's Common Stock;
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provided that a member of management of the Corporation shall not be elected to
the Compensation Committee.
(c) The Audit Committee shall consist of three (3) directors, two (2)
of whom shall be appointed by a majority of the directors appointed by the
holders of the Corporation's Series A Preferred Stock and Series B Preferred
Stock voting as a single class and one (1) of whom shall be appointed by a
majority of the directors appointed by the holders of the Corporation's Common
Stock; provided that a member of management of the Corporation shall not be
elected to the Audit Committee.
SECTION 2.13. Compensation. A director shall receive such
compensation, if any, for his services as a director as may from time to time be
fixed by the Board of Directors, which compensation may be based, in whole or in
part, upon his attendance at meetings of the Board of Directors or of its
committees. He may also be reimbursed for his expenses in attending any meeting.
SECTION 2.14. Technology Control. (a) The Corporation and the Board of
Directors hereby acknowledge that the United States government controls, for
reasons of U.S. national security, the export of satellites, satellite
technology and related technical data (referred to herein as "Regulated
Asset(s)") (as such terms are defined, inter alia, in the International Traffic
in Arms Regulations) (the "ITAR", 22 C.F.R. Sections 120-130). Accordingly, the
Board of Directors and shareholders of the Corporation that are not U.S. persons
(as defined at 22 C.F.R. Section 120) shall not seek and shall not be afforded
access to the Company's Regulated Assets, except as authorized by the
appropriate U.S. government agency. The Board of Directors shall act to ensure
that the Company does not otherwise violate the ITAR or any other applicable
U.S. law or regulation. The Corporation shall promptly seek all requisite U.S.
government authorizations ("Consents") that are necessary or advisable to ensure
that Directors, Officers, employees, or such other parties as reasonably
determined by the Company, have access to the information and Regulated Assets
needed to carry out their responsibilities and the business of the Company.
(b) In the event that at least two (2) of the directors of the
Corporation reasonably determine that any action to be taken or proposed to be
taken by the Corporation or the Board of Directors with respect to any Regulated
Asset may require prior authorization from any governmental entity as a result
of the ownership and/or control of the Corporation by a Foreign Person (as
defined at 22 C.F.R. Section 120), or participation on the board of directors of
any Foreign Persons or any U.S. Persons appointed by a Foreign Person(s), and
Corporation counsel cannot provide the Corporation with a written opinion
stating that prior Consents from any governmental authority are not necessary or
advisable, the Corporation shall, prior to the taking of any such action, obtain
all requisite prior Consents. Notwithstanding the foregoing, if by the unanimous
vote of all then serving directors, including Foreign Persons and U.S. Persons
appointed by Foreign Persons, the Corporation determines that it is necessary,
advisable, or reasonably prudent for a decision on any such action with respect
to a Regulated Asset to be taken before Consents can be obtained, then the Board
of Directors shall proceed on the matter (a "Regulated Matter"). Under such
circumstances, with respect to said Regulated Matter, any Director that is a
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Foreign Person shall be recused from: (i) attending any portion of a Board of
Directors meeting where said Regulated Matter is considered; or (ii) voting on
any action of the Board of Directors relating to said Regulated Matter.
Notwithstanding any other the provision of this Agreement, any director voting
on any action of the Board of Directors relating to a Regulated Matter shall be
guided by the best interests of the Corporation, and such director's vote shall
not be directed or controlled in any way by any Foreign Person, even if such
director was elected by a Foreign Person(s). Additionally, with respect to any
Regulated Matter, any applicable unanimous consent or super-majority voting
provisions established by the Company shall only apply to the voting of
directors not recused pursuant to this Section 2.14(b). Any recusal resulting
from the provisions of this Section 2.14(b) shall cease to apply with respect to
any Regulated Matter upon the receipt by the Corporation of an opinion of
counsel (or other written advice) satisfactory to all of the directors that: (i)
all requisite prior Consents have been obtained to permit the Corporation to
take any subject action relating to said Regulated Matter and the Regulated
Asset(s) relating thereto; or (ii) the provisions of this Section 2.14(b) are
not necessary under applicable U.S. law.
ARTICLE THREE
OFFICERS
SECTION 3.1. Election; Qualification. The officers of the Corporation
shall have such titles and duties as are set forth in a resolution adopted by
the Board of Directors. The Board of Directors may elect such officers as it may
from time to time determine. Two or more offices may be held by the same person
and any office may be held by more than one person.
SECTION 3.2. Term of Office. Each officer shall hold office from the
time of his election and qualification until the expiration of the term for
which he is elected and until the time his successor is elected and qualified,
unless sooner he shall die or resign or shall be removed pursuant to Section
3.4.
SECTION 3.3. Resignation. Any officer of the Corporation may resign at
any time by giving written notice of such resignation to the Board of Directors,
the Chief Executive Officer or the Secretary of the Corporation. Any such
resignation shall take effect at the time specified therein or, if no time be
specified, upon receipt thereof by the Board of Directors or one of the
above-named officers. Unless specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
SECTION 3.4. Removal. Any officer of the Corporation may be removed at
any time, with or without cause, by the vote of a majority of the whole Board of
Directors.
SECTION 3.5. Vacancies. Any vacancy, however caused, in any office of
the Corporation may be filled by the Board of Directors.
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SECTION 3.6. Compensation. The compensation of each officer shall be
such as the Board of Directors may from time to time determine in accordance
with these By-laws.
SECTION 3.7. Chief Executive Officer. The Chief Executive Officer
shall be the chief executive officer of the Corporation and shall have general
charge of the business and affairs of the Corporation, subject, however, to the
right of the Board of Directors to confer specified powers on officers and
subject generally to the direction of the Board of Directors and the Executive
Committee, if any.
SECTION 3.8. President. The President, if any, shall have charge of
the general business and affairs of the Corporation under the supervision of the
Chief Executive Officer, subject to the right of the Board of Directors to
confer specified powers on officers and subject generally to the direction of
the Board of Directors and the Executive Committee, if any. During the absence
of the Chief Executive Officer or his inability to act, the President shall
exercise the powers and perform the duties of the Chief Executive Officer,
subject to the direction of the Board of Directors and the Executive Committee,
if any.
SECTION 3.9. Vice President. Each Vice President shall have such
powers and duties as generally pertain to the office of Vice President and as
the Board of Directors or the Chief Executive Officer may from time to time
prescribe. During the absence of the President or his inability to act, the Vice
President, or if there shall be more than one Vice President then that one
designated by the Board of Directors, shall exercise the powers and shall
perform the duties of the President, subject to the direction of the Board of
Directors and the Executive Committee, if any.
SECTION 3.10. Secretary. The Secretary shall keep the minutes of all
meetings of stockholders and of the Board of Directors. He shall be custodian of
the corporate seal and shall affix it or cause it to be affixed to such
instruments as require such seal and attest the same and shall exercise the
powers and shall perform the duties incident to the office of Secretary, subject
to the direction of the Board of Directors and the Executive Committee, if any.
SECTION 3.11. Treasurer. The Treasurer shall have care of all funds
and securities of the Corporation and shall exercise the powers and shall
perform the duties incident to the office of Treasurer, subject to the direction
of the Board of Directors and the Executive Committee, if any.
SECTION 3.12. Other Officers. The Board of Directors may designate any
other officers of the Corporation, including one or more Assistant Secretaries
and one or more Assistant Treasurers, who shall exercise the powers and shall
perform the duties incident to their offices, subject to the direction of the
Board of Directors and the Executive Committee, if any.
ARTICLE FOUR
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INDEMNIFICATION
SECTION 4.1. Indemnification. (a) The Corporation shall indemnify,
subject to the requirements of subsection (d) of this Section, any person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the Corporation),
by reason of the fact that he is or was a director, officer, employee or agent
of the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another (foreign or domestic)
corporation, limited liability company, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests of
the Corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the 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 and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
(b) The Corporation shall indemnify, subject to the requirements of
subsection (d) of this Section, any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the Corporation to procure a judgment in its favor by
reason of the fact that he is or was a director, officer, employee or agent of
the Corporation or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Corporation unless and only to the extent that the Court of
Chancery of the State of Delaware or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the Court of
Chancery of the State of Delaware or such other court shall deem proper.
(c) To the extent that a director, officer, employee or agent of the
Corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (a) and (b) of this
Section, or in defense of any claim, issue or matter therein, the Corporation
shall indemnify him against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
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(d) Any indemnification under subsections (a) and (b) of this Section
(unless ordered by a court) shall be made by the Corporation only as authorized
in the specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in subsections (a) and (b) of this
Section. Such determination shall be made (1) by the Board of Directors by a
majority vote of a quorum consisting of directors who were not parties to such
action, suit or proceeding, or (2) if such a quorum is not obtainable, or, even
if obtainable a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, or (3) by the stockholders.
(e) Expenses incurred by a director, officer, employee or agent in
defending a civil or criminal action, suit or proceeding may be paid by the
Corporation in advance of the final disposition of such action, suit or
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 is not
entitled to be indemnified by the Corporation as authorized in this Section.
Such expenses incurred by other employees and agents may be so paid upon such
terms and conditions, if any, as the Board of Directors deems appropriate.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this Section shall not limit the
Corporation from providing any other indemnification or advancement of expenses
permitted by law nor shall they be deemed exclusive of any other rights to which
a person seeking indemnification or advancement of expenses may be entitled
under any by-law, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office.
(g) The Corporation may purchase and maintain insurance on behalf of
any person who is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another (foreign or domestic)
corporation, limited liability company, partnership, joint venture, trust or
other enterprise against any liability asserted against him and incurred by him
in any such capacity, or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such liability under
the provisions of this Section.
(h) For the purposes of this Section, references to "the Corporation"
shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, employees or
agents, so that any person who is or was a director, officer, employee or agent
of such constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, shall stand
in the same position under the provisions of this Section with respect to the
resulting or surviving corporation as he would have with respect to such
constituent corporation if its separate existence had continued.
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(i) For purposes of this Section, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to an employee benefit plan; and
references to "serving at the request of the Corporation" shall include any
service as a director, officer, employee or agent of the Corporation which
imposes duties on, or involves services by, such director, officer, employee, or
agent with respect to any employee benefit plan, its participants, or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the Corporation" as referred to in this
Section.
(j) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Section shall, unless otherwise provided when
authorized or ratified by the Board of Directors, continue as to a person who
has ceased to be a director, officer, employee or agent of the Corporation and
shall inure to the benefit of the heirs, executors and administrators of such a
person.
ARTICLE FIVE
CAPITAL STOCK
SECTION 5.1. Stock Certificates. The interest of each holder of stock
of the Corporation shall be evidenced by a certificate or certificates in such
form as the Board of Directors may from time to time prescribe, provided the
Board of Directors may by resolution provide that some or all of any or all
classes or series of its stock shall be uncertificated shares. Notwithstanding
the adoption of such a resolution by the Board of Directors, every holder of
uncertificated shares, upon request, shall be entitled to receive from the
Corporation a certificate representing the number of shares registered in such
stockholder's name on the books of the Corporation. Each stock certificate and
certificate representing previously uncertificated shares shall be signed by or
in the name of the Corporation by the Chief Executive Officer or the President
or a Vice President and by the Treasurer or an Assistant Treasurer or the
Secretary or an Assistant Secretary. Any or all of the signatures appearing on
any such certificate or certificates may be a facsimile. If any officer,
transfer agent or registrar who has signed or whose facsimile signature has been
placed upon any such 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 were such officer, transfer agent or
registrar at the date of issue.
SECTION 5.2. Transfer of Stock. Shares of stock of the Corporation
shall be transferable on the books of the Corporation by the holder of record
thereof or by his attorney, pursuant to applicable law and such rules and
regulations as the Board of Directors shall from time to time prescribe. Any
shares represented by a certificate shall be transferable only upon surrender of
the certificate with an assignment endorsed thereon or attached thereto duly
executed and with such proof of authenticity of signatures as the Corporation
may reasonably require.
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SECTION 5.3. Holders of Record. Prior to due presentment for
registration of transfer, the Corporation may treat the holder of record of a
share of its stock as the complete owner thereof exclusively entitled to vote,
to receive notifications and otherwise entitled to all the rights and powers of
a complete owner thereof, notwithstanding notice to the contrary.
SECTION 5.4. Lost, Destroyed, Mutilated or Stolen Certificates. The
Corporation shall issue a new certificate of stock or uncertificated shares to
replace a certificate theretofore issued by it alleged to have been lost,
destroyed, mutilated or stolen, if the owner or his legal representative (i)
submits a written request for the replacement of the certificate, together with
the mutilated certificate or such evidence as the Board of Directors may deem
satisfactory of the loss, destruction or theft of the certificate, and such
request is received by the Corporation before the Corporation has notice that
the certificate has been acquired by a bona fide purchaser, (ii) files with the
Corporation a bond sufficient to indemnify the Corporation against any claim
that may be made against it on account of the alleged loss, destruction,
mutilation or theft of any such certificate or the issuance of any such new
certificate and (iii) satisfies such other terms and conditions as the Board of
Directors may from time to time prescribe.
ARTICLE SIX
MISCELLANEOUS
SECTION 6.1. Fiscal Year. The fiscal year of the Corporation shall
start on such date as the Board of Directors shall from time to time prescribe.
SECTION 6.2. Corporate Seal. The corporate seal shall be in such form
as the Board of Directors may from time to time prescribe, and the same may be
used by causing it or a facsimile thereof to be impressed or affixed or in any
other manner reproduced.
ARTICLE SEVEN
AMENDMENT OF BY-LAWS
SECTION 7.1. Amendment. The By-Laws may be adopted, amended or
repealed by the stockholders of the Corporation in accordance with the
Certificate of Incorporation or by the Board of Directors by a majority vote of
the whole Board of Directors.
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