1
EXHIBIT 3.2
FORM OF
AMENDED AND RESTATED
BYLAWS
OF
YELLOWBRIX, INC.
ARTICLE I
OFFICES
SECTION 1.01. Registered Office. The registered office of the
corporation in the State of Delaware shall be in the City of Dover, County of
Kent, and the name of its registered agent shall be The Corporation Trust
Company.
SECTION 1.02. Other Offices. The corporation may also have
offices at such other places both within and without the State of Delaware as
the Board of Directors may from time to time determine or the business of the
corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 2.01. Place of Meeting. All meetings of stockholders for the
election of directors shall be held at such place, either within or without the
State of Delaware, as shall be designated from time to time by the Board of
Directors and stated in the notice of the meeting.
SECTION 2.02. Annual Meeting. The annual meeting of stockholders
shall be held at such date and time as shall be designated from time to time by
the Board of Directors and stated in the notice of the meeting.
Nominations of persons for election to the Board of Directors and the
proposal of business to be considered by the stockholders shall be made at an
annual meeting of stockholders (A) pursuant to the corporation's notice of such
meeting, (B) by or at the direction of the Board of Directors or (C) by any
stockholder of the corporation who was a stockholder of record at the time of
giving of the notice provided for in this section, who is entitled to vote at
such meeting and who complies with the notice procedures set forth in this
section. For nominations or other business to be properly brought before an
annual meeting by a stockholder pursuant to clause (C) of this section, the
stockholder must have given timely notice thereof in writing to the Secretary of
the
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corporation and such other business must otherwise be a proper matter for
stockholder action. To be timely, a stockholder's notice must be delivered to
the Secretary at the principal executive offices of the corporation not later
than the close of business on the sixtieth (60th) day nor earlier than the close
of business on the ninetieth (90th) day prior to the annual meeting.
SECTION 2.03. Voting List. The officer who has charge of the
stock ledger of the corporation shall prepare and make, at least 10 days before
every meeting of stockholders, a complete list of the stockholders entitled to
vote at the meeting, arranged in alphabetical order, and showing the address of
each stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for
any purpose germane to the meeting, during ordinary business hours, for a period
of at least 10 days prior to the meeting, either at a place within the city
where the meeting is to be held, which place shall be specified in the notice,
or if not so specified, at the place where the meeting is to be held. The list
shall also be produced and kept at the time and place of the meeting during the
whole time thereof, and may be inspected by any stockholder who is present.
SECTION 2.04. Special Meeting. Special meetings of the stockholders,
for any purpose or purposes, unless otherwise prescribed by statute or by the
Certificate of Incorporation, may be called by the Chairman of the Board or by
the President of the corporation or by the Board of Directors or by written
order of a majority of the directors and shall be called by the President or the
Secretary at the request in writing of stockholders owning at least 66 2/3% of
the entire capital stock of the corporation issued and outstanding and entitled
to vote. Such request shall state the purposes of the proposed meeting. The
Chairman of the Board or the President of the corporation or directors so
calling, or the stockholders so requesting, any such meeting shall fix the time
and any place, either within or without the State of Delaware, as the place for
holding such meeting.
SECTION 2.05. Notice of Meeting. Written notice of the annual, and
each special meeting of stockholders, stating the time, place, and purpose or
purposes thereof, shall be given to each stockholder entitled to vote thereat,
not less than 10 nor more than 60 days before the meeting.
SECTION 2.06. Quorum. The holders of a majority of the shares of the
corporation's capital stock issued and outstanding and entitled to vote thereat,
present in person or represented by proxy, shall constitute a quorum at any
meeting of stockholders for the transaction of business, except as otherwise
provided by statute or by the Certificate of Incorporation. Notwithstanding the
other provisions of the Certificate of Incorporation or these bylaws, the
holders of a majority of the shares of the corporation's capital stock entitled
to vote thereat, present in person or represented by proxy, whether or not a
quorum is present, shall have power to adjourn the meeting from time to time,
without notice other than announcement at the meeting, until a quorum shall be
present or represented. 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
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shall be given to each stockholder of record entitled to vote at the meeting. At
such adjourned meeting at which a quorum shall be present or represented, any
business may be transacted which might have been transacted at the meeting as
originally notified.
SECTION 2.07. Voting. When a quorum is present at any meeting of
the stockholders, the vote of the holders of a majority of the shares of the
corporation's capital stock having voting power present in person or represented
by proxy shall decide any question brought before such meeting, unless the
question is one upon which, by express provision of the statutes, of the
Certificate of Incorporation or of these bylaws, a different vote is required,
in which case such express provision shall govern and control the decision of
such question. Every stockholder having the right to vote shall be entitled to
vote in person, or by proxy appointed by an instrument in writing subscribed by
such stockholder, bearing a date not more than three years prior to voting,
unless such instrument provides for a longer period, and filed with the
Secretary of the corporation before, or at the time of, the meeting. If such
instrument shall designate two or more persons to act as proxies, unless such
instrument shall provide the contrary, a majority of such persons present at any
meeting at which their powers thereunder are to be exercised shall have and may
exercise all the powers of voting or giving consents thereby conferred, or if
only one be present, then such powers may be exercised by that one; or, if an
even number attend and a majority do not agree on any particular issue, each
proxy so attending shall be entitled to exercise such powers in respect of the
same portion of the shares as he is of the proxies representing such shares.
SECTION 2.08. Consent of Stockholders. Whenever the vote of
stockholders at a meeting thereof is required or permitted to be taken for or in
connection with any corporate action by any provision of the statutes, the
meeting and vote of stockholders may be dispensed with if the greater of (i) at
least 66 2/3% of the stockholders who would have been entitled to vote upon the
action if such meeting were held shall consent in writing to such corporate
action being taken; or (ii) on the written consent of holders of shares of the
corporation's capital stock having not less than the minimum percentage of the
vote required by statute for the proposed corporate action, and provided that
prompt notice must be given to all stockholders of the taking of corporate
action without a meeting and by less than unanimous written consent.
SECTION 2.09. Voting of Stock of Certain Holders. Shares of the
corporation's capital stock standing in the name of another corporation,
domestic or foreign, may be voted by such officer, agent, or proxy as the bylaws
of such corporation may prescribe, or in the absence of such provision, as the
Board of Directors of such corporation may determine. Shares standing in the
name of a deceased person may be voted by the executor or administrator of such
deceased person, either in person or by proxy. Shares standing in the name of a
guardian, conservator, or trustee may be voted by such fiduciary, either in
person or by proxy, but no such fiduciary shall be entitled to vote shares held
in such fiduciary capacity without a transfer of such shares into the name of
such fiduciary. Shares standing in the name of a receiver may be voted by such
receiver. A stockholder whose shares are pledged shall be entitled to vote such
shares, unless in the transfer by
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the pledgor on the books of the corporation, he has expressly empowered the
pledgee to vote thereon, in which case only the pledgee, or his proxy, may
represent the stock and vote thereon.
SECTION 2.10. Treasury Stock. The corporation shall not vote,
directly or indirectly, shares of its own capital stock owned by it; and such
shares shall not be counted in determining the total number of outstanding
shares of the corporation's capital stock.
SECTION 2.11. Fixing Record Date. The Board of Directors may fix
in advance a date, which shall not be more than 60 days nor less than 10 days
preceding the date of any meeting of stockholders, nor more than 60 days
preceding the date for payment of any dividend or distribution, or the date for
the allotment of rights, or the date when any change, or conversion or exchange
of capital stock shall go into effect, or a date in connection with obtaining a
consent, as a record date for the determination of the stockholders entitled to
notice of, and to vote at, any such meeting and any adjournment thereof, or
entitled to receive payment of any such dividend or distribution, or to receive
any such allotment of rights, or to exercise the rights in respect of any such
change, conversion or exchange of capital stock, or to give such consent, and in
such case such stockholders and only such stockholders as shall be stockholders
of record on the date so fixed, shall be entitled to such notice of, and to vote
at, any such meeting and any adjournment thereof, or to receive payment of such
dividend or distribution, or to receive such allotment of rights, or to exercise
such rights, or to give such consent, as the case may be, notwithstanding any
transfer of any stock on the books of the corporation after any such record date
fixed as aforesaid.
ARTICLE III
BOARD OF DIRECTORS
SECTION 3.01. Powers. The business and affairs of the corporation
shall be managed by its Board of Directors, which may exercise all such powers
of the corporation and do all such lawful acts and things as are not by statute
or by the Certificate of Incorporation or by these bylaws directed or required
to be exercised or done by the stockholders.
SECTION 3.02. Number, Election and Term. The number of directors
that shall constitute the whole Board of Directors shall be not less than three
nor more than 12. Such number of directors shall from time to time be fixed and
determined by the directors and shall be set forth in the notice of any meeting
of stockholders held for the purpose of electing directors. The directors shall
be elected at the annual meeting of stockholders, except as provided in Section
3.03, and each director elected shall hold office until his successor shall be
elected and shall qualify. Directors need not be residents of Delaware or
stockholders of the corporation.
SECTION 3.03. Vacancies, Additional Directors, and Removal From
Office. If any vacancy occurs in the Board of Directors caused by death,
resignation, retirement, disqualification, or removal from office of any
director, or otherwise, or if any new directorship is
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created by an increase in the authorized number of directors as provided in
Section 3.02 or otherwise, a majority of the directors then in office, though
less than a quorum, or a sole remaining director, may choose a successor or fill
the newly created directorship. Any director so elected shall serve for the
remainder of the full term of the class of directors in which the new
directorship was created or the vacancy occurred and until his or her successor
shall be elected and qualified. Any director may be removed either for or
without cause at any special meeting of stockholders duly called and held for
such purpose.
SECTION 3.04. Regular and Annual Meetings. An annual meeting of the
Board for the election of officers shall be held, with notice, at such time or
place as the Board may fix by resolution. The Board may provide, by resolution,
the time and place, within or without the State of Delaware, for the holding of
regular meetings of the Board without notice other than such resolution.
SECTION 3.05. Special Meeting. A special meeting of the Board of
Directors shall be called by the Secretary on the written request of any two
directors, one of whom must be the Chief Executive Officer. The directors so
requesting any such meeting shall fix the time and any place, either within or
without the State of Delaware, as the place for holding such meeting.
SECTION 3.06. Notice of Special Meeting. Written notice of special
meetings of the Board of Directors shall be given to each director at least 24
hours prior to the time of such meeting. Any director may waive notice of any
meeting. The attendance of a director at any meeting shall constitute a waiver
of notice of such meeting, except where a director attends a meeting for the
purpose of objecting to the transaction of any business because the meeting is
not lawfully called or convened. Neither the business to be transacted at, nor
the purpose of, any special meeting of the Board of Directors need be specified
in the notice or waiver of notice of such meeting, except that notice shall be
given of any proposed amendment to the bylaws if it is to be adopted at any
special meeting or with respect to any other matter where notice is required by
statute.
SECTION 3.07. Quorum. A majority of the Board of Directors shall
constitute a quorum for the transaction of business at any meeting of the Board
of Directors, and the act of a majority of the directors present at any meeting
at which there is a quorum shall be the act of the Board of Directors, except as
may be otherwise specifically provided by statute, by the Certificate of
Incorporation or by 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 3.08. Action Without Meeting. Unless otherwise restricted
by the Certificate of Incorporation or these bylaws, any action required or
permitted to be taken at any meeting of the Board of Directors, or of any
committee thereof as provided in Article IV of these bylaws, may be taken
without a meeting, if a written consent thereto is signed by all members of the
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Board of Directors or of such committee, as the case may be, and such written
consent is filed with the minutes of proceedings of the Board of Directors or
such committee.
SECTION 3.09. Compensation. Directors, as such, shall not be
entitled to any stated salary for their services unless voted by the
stockholders or the Board of Directors; but by resolution of the Board of
Directors, a fixed sum and expenses of attendance, if any, may be allowed for
attendance at each regular or special meeting of the Board of Directors or any
meeting of a committee of directors. No provision of these bylaws shall be
construed to preclude any director from serving the corporation in any other
capacity and receiving compensation therefor.
ARTICLE IV
COMMITTEE OF DIRECTORS
SECTION 4.01. Designation, Powers and Name. The Board of Directors
may, by resolution passed by a majority of the whole Board of Directors,
designate one or more committees, including, if they shall so determine, an
Executive Committee, each such committee to consist of two or more of the
directors of the corporation. The committee shall have and may exercise such of
the powers of the Board of Directors in the management of the business and
affairs of the corporation as may be provided in such resolution. The committee
may authorize the seal of the corporation to be affixed to all papers that may
require it. The Board of Directors may designate one or more directors as
alternate members of any committee, who may replace any absent or disqualified
member at any meeting of such committee. In the absence or disqualification of
any member of such committee or committees, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any such absent or disqualified
member. Such committee or committees shall have such name or names and such
limitations of authority as may be determined from time to time by resolution
adopted by the Board of Directors.
SECTION 4.02. Minutes. Each committee of directors shall keep
regular minutes of its proceedings and report the same to the Board of Directors
when required.
SECTION 4.03. Compensation. Members of special or standing
committees may be allowed compensation for attending committee meetings, if the
Board of Directors shall so determine.
ARTICLE V
NOTICE
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SECTION 5.01. Methods of Giving Notice. Whenever under the
provisions of applicable statutes, the Certificate of Incorporation or these
bylaws, notice is required to be given to any director, member of any committee,
or stockholder, at least twenty-four (24) hours' notice of meetings shall be
given to each director if given in person or by telephone, telegraph, telex,
facsimile or other electronic transmission and at least five (5) days' notice of
meetings shall be given if given in writing and delivered by courier or by
postage prepaid mail. Such notice shall be deemed given when sent or given to
any mail or courier service or company providing electronic transmission
service.
SECTION 5.02. Written Waiver. Whenever any notice is required to be
given under the provisions of an applicable statute, the Certificate of
Incorporation, or these bylaws, a waiver thereof in writing, signed by the
person or persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent thereto. The attendance of a director
at a meeting shall constitute a waiver of notice of such meeting, except where a
director attends a meeting for the express purpose of objecting at the beginning
of the meeting to the transaction of any business because the meeting is not
lawfully called or convened.
ARTICLE VI
OFFICERS
SECTION 6.01. Officers. The officers of the corporation shall be a
Chairman of the Board and a Vice Chairman of the Board (if such offices are
created by the Board), a President, one or more Vice Presidents, any one or more
of which may be designated Executive Vice President or Senior Vice President, a
Secretary and a Treasurer. The Board of Directors may appoint such other
officers and agents, including Assistant Vice Presidents, Assistant Secretaries,
and Assistant Treasurers, in each case as the Board of Directors shall deem
necessary, who shall hold their offices for such terms and shall exercise such
powers and perform such duties as shall be determined by the Board. Any two or
more offices may be held by the same person. No officer shall execute,
acknowledge, verify or countersign any instrument on behalf of the corporation
in more than one capacity, if such instrument is required by law, by these
bylaws or by any act of the corporation to be executed, acknowledged, verified,
or countersigned by two or more officers. The Chairman and Vice Chairman of the
Board shall be elected from among the directors. With the foregoing exceptions,
none of the other officers need be a director, and none of the officers need be
a stockholder of the corporation.
SECTION 6.02. Election and Term of Office. The officers of the
corporation shall be elected by the Board of Directors. If such election is not
held at the meeting held annually for the election of officers, such officers
may be so elected at any subsequent regular meeting or at a special meeting
called for that purpose, in the same manner as above provided. Each officer
shall hold office until his successor shall have been chosen and shall have
qualified or until his death or
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the effective date of his resignation or removal, or until he shall cease to be
a director in the case of the Chairman and the Vice Chairman.
SECTION 6.03. Removal and Resignation. Any officer or agent elected
or appointed by the Board of Directors may be removed without cause by the
affirmative vote of a majority of the Board of Directors whenever, in its
judgment, the best interests of the corporation shall be served thereby, but
such removal shall be without prejudice to the contractual rights, if any, of
the person so removed. Any officer may resign at any time by giving written
notice to the corporation. Any such resignation shall take effect at the date of
the receipt of such notice or at any later time specified therein, and unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
SECTION 6.04. Vacancies. Any vacancy occurring in any office of the
corporation by death, resignation, removal, or otherwise, may be filled by the
Board of Directors for the unexpired portion of the term.
SECTION 6.05. Salaries. The salaries of all officers and agents
of the corporation shall be fixed by the Board of Directors or pursuant to its
direction; and no officer shall be prevented from receiving such salary by
reason of his also being a director.
SECTION 6.06. Chairman of the Board. The Chairman of the Board (if
such office is created by the Board) shall preside at all meetings of the Board
of Directors or of the stockholders of the corporation. The Chairman shall
formulate and submit to the Board of Directors or the Executive Committee
matters of general policy for the corporation and shall perform such other
duties as usually appertain to the office or as may be prescribed by the Board
of Directors or the Executive Committee.
SECTION 6.07. Vice Chairman of the Board. The Vice Chairman of the
Board (if such office is created by the Board) shall, in the absence or
disability of the Chairman of the Board, perform the duties and exercise the
powers of the Chairman of the Board. The Vice Chairman shall perform such other
duties as from time to time may be prescribed by the Board of Directors or the
Executive Committee or assigned by the Chairman of the Board.
SECTION 6.08 Chief Executive Officer. The Chief Executive Officer
shall be the chief executive officer of the corporation and, subject to the
control of the Board of Directors, shall in general supervise and control the
business and affairs of the corporation. In the absence of the Chairman of the
Board or the Vice Chairman of the Board (if such offices are created by the
Board), the Chief Executive Officer shall preside at all meetings of the Board
of Directors and of the stockholders. He may also preside at any such meeting
attended by the Chairman or Vice Chairman of the Board if he is so designated by
the Chairman, or in the Chairman's absence by the Vice Chairman. He shall have
the power to appoint and remove subordinate officers, agents and employees,
except those elected or appointed by the Board of Directors. The Chief Executive
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Officer shall keep the Board of Directors and the Executive Committee fully
informed and shall consult them concerning the business of the corporation. He
may sign with the Secretary or any other officer of the corporation thereunto
authorized by the Board of Directors, certificates for shares of the corporation
and any deeds, bonds, mortgages, contracts, checks, notes, drafts, or other
instruments that the Board of Directors has authorized to be executed, except in
cases where the signing and execution thereof has been expressly delegated by
these bylaws or by the Board of Directors to some other officer or agent of the
corporation, or shall be required by law to be otherwise executed. He shall
vote, or give a proxy to any other officer of the corporation to vote, all
shares of stock of any other corporation standing in the name of the corporation
and in general he shall perform all other duties normally incident to the office
of Chief Executive Officer and such other duties as may be prescribed by the
stockholders, the Board of Directors, or the Executive Committee from time to
time.
The President shall be the Chief Executive Officer of the Corporation
unless the Board of Directors shall designate the Chairman of the Board or
another officer to be the Chief Executive Officer. If there is no President, and
the Board of Directors has not designated any other officer to be the Chief
Executive Officer, then the Chairman of the Board shall be the Chief Executive
Officer.
SECTION 6.08. President. Unless otherwise designated by the Board
of Directors, and subject to the supervisory powers of the Chief Executive
Officer (if the Chief Executive Officer is not the President), and subject to
such supervisory powers and authority as may be given by the Board of Directors
to the Chairman of the Board, and/or to any other officer, the President shall
be the chief executive officer of the Corporation. Subject to the provisions of
these Bylaws and to the direction of the Board of Directors, the President shall
have the responsibility for the general management and the control of the
business and affairs of the Corporation and the general supervision and
direction of all of the officers, employees and agents of the Corporation (other
than the Chief Executive Officer, if the Chief Executive Officer is an officer
other than the President) and shall perform all duties and have all powers that
are commonly incident to the office of President or that are delegated to the
President by the Board of Directors.
SECTION 6.09. Vice Presidents. In the absence of the President,
or in the event of his inability or refusal to act, the Executive Vice President
(or in the event there shall be no Vice President designated Executive Vice
President, any Vice President designated by the Board) shall perform the duties
and exercise the powers of the President. Any Vice President may sign, with the
Secretary or Assistant Secretary, certificates for shares of the corporation.
The Vice Presidents shall perform such other duties as from time to time may be
assigned to them by the President, the Board of Directors or the Executive
Committee.
SECTION 6.10. Secretary. The Secretary shall (a) keep the minutes
of the meetings of the stockholders, the Board of Directors and committees of
directors; (b) see that all notices are duly given in accordance with the
provisions of these bylaws and as required by law;
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(c) be custodian of the corporate records and of the seal of the corporation,
and see that the seal of the corporation or a facsimile thereof is affixed to
all certificates for shares prior to the issue thereof and to all documents, the
execution of which on behalf of the corporation under its seal is duly
authorized in accordance with the provisions of these bylaws; (d) keep or cause
to be kept a register of the post office address of each stockholder which shall
be furnished by such stockholder; (e) sign with the President, or an Executive
Vice President or Vice President, certificates for shares of the corporation,
the issue of which shall have been authorized by resolution of the Board of
Directors; (f) have general charge of the stock transfer books of the
corporation; and (g) in general, perform all duties normally incident to the
office of Secretary and such other duties as from time to time may be assigned
to him by the President, the Board of Directors or the Executive Committee.
SECTION 6.11. Treasurer. If required by the Board of Directors, the
Treasurer shall give a bond for the faithful discharge of his duties in such sum
and with such surety or sureties as the Board of Directors shall determine. He
shall (a) have charge and custody of and be responsible for all funds and
securities of the corporation; (b) receive and give receipts for moneys due and
payable to the corporation from any source whatsoever and deposit all such
moneys in the name of the corporation in such banks, trust companies, or other
depositories as shall be selected in accordance with the provisions of Section
7.03 of these bylaws; (c) prepare, or cause to be prepared, for submission at
each regular meeting of the Board of Directors, at each annual meeting of the
stockholders, and at such other times as may be required by the Board of
Directors, the President or the Executive Committee, a statement of financial
condition of the corporation in such detail as may be required; and (d) in
general, perform all the duties incident to the office of Treasurer and such
other duties as from time to time may be assigned to him by the President, the
Board of Directors or the Executive Committee.
SECTION 6.12. Assistant Secretary and Treasurer. The Assistant
Secretaries and Assistant Treasurers shall, in general, perform such duties as
shall be assigned to them by the Secretary or the Treasurer, respectively, or by
the President, the Board of Directors, or the Executive Committee. The Assistant
Secretaries and Assistant Treasurers shall, in the absence of the Secretary or
Treasurer, respectively, perform all functions and duties which such absent
officers may delegate, but such delegation shall not relieve the absent officer
from the responsibilities and liabilities of his office. The Assistant
Secretaries may sign, with the President or a Vice President, certificates for
shares of the corporation, the issue of which shall have been authorized by a
resolution of the Board of Directors. The Assistant Treasurers shall
respectively, if required by the Board of Directors, give bonds for the faithful
discharge of their duties in such sums and with such sureties as the Board of
Directors shall determine.
SECTION 6.13 Chief Financial Officer. Subject to the direction of
the Board of Directors and the President, the Chief Financial Officer shall
perform all duties and have all powers that are commonly incident to the office
of Chief Financial Officer.
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ARTICLE VII
CONTRACTS, CHECKS AND DEPOSITS
SECTION 7.01. Contracts. Subject to the provisions of Section 6.01,
the Board of Directors may authorize any officer, officers, agent, or agents, to
enter into any contract or execute and deliver any instrument in the name of and
on behalf of the corporation, and such authority may be general or confined to
specific instances.
SECTION 7.02. Checks. All checks, demands, 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 such officer or officers or such
agent or agents of the corporation, and in such manner, as shall be determined
by the Board of Directors.
SECTION 7.03. Deposits. All funds of the corporation not otherwise
employed shall be deposited from time to time to the credit of the corporation
in such banks, trust companies, or other depositories as the Board of Directors
may select.
ARTICLE VIII
CERTIFICATES OF STOCK
SECTION 8.01. Issuance. Each stockholder of this corporation shall
be entitled to a certificate or certificates showing the number of shares of
capital stock registered in his name on the books of the corporation. The
certificates shall be in such form as may be determined by the Board of
Directors, shall be issued in numerical order and shall be entered in the books
of the corporation as they are issued. They shall exhibit the holder's name and
number of shares and shall be signed by the President or a Vice President and by
the Secretary or an Assistant Secretary. If any certificate is countersigned (1)
by a transfer agent other than the corporation or any employee of the
corporation, or (2) by a registrar other than the corporation or any employee of
the corporation, any other signature on the certificate may be a facsimile. If
the corporation shall be authorized to issue more than one class of stock or
more than one series of any class, the designations, preferences, and relative
participating, optional, or other special rights of each class of stock or
series thereof and the qualifications, limitations, or restrictions of such
preferences and rights shall be set forth in full or summarized on the face or
back of the certificate which the corporation shall issue to represent such
class of stock; provided that, except as otherwise provided by statute, in lieu
of the foregoing requirements there may be set forth on the face or back of the
certificate which the corporation shall issue to represent such class or series
of stock, a statement that the corporation will furnish to each stockholder who
so requests the designations, preferences and relative, participating, optional
or other special rights of each class of stock or series thereof and the
qualifications, limitations, or restrictions of such preferences and rights. All
certificates
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surrendered to the corporation for transfer shall be canceled and no new
certificate shall be issued until the former certificate for a like number of
shares shall have been surrendered and canceled, except that in the case of a
lost, stolen, destroyed, or mutilated certificate a new one may be issued
therefor upon such terms and with such indemnity, if any, to the corporation as
the Board of Directors may prescribe. Certificates shall not be issued
representing fractional shares of stock.
SECTION 8.02. Lost Certificates. The Board of Directors may direct
a new certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the corporation alleged to have been lost,
stolen, or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates, the Board of
Directors may, in its discretion and as a condition precedent to the issuance
thereof, require (1) the owner of such lost, stolen, or destroyed certificate or
certificates, or his legal representative, to advertise the same in such manner
as it shall require, (2) such owner to give the corporation a bond in such sum
as it may direct as indemnity against any claim that may be made against the
corporation with respect to the certificate or certificates alleged to have been
lost, stolen, or destroyed, or (3) both.
SECTION 8.03. Transfers. Upon surrender to the corporation or the
transfer agent of the corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment, or authority to
transfer, it shall be the duty of the corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate, and record the
transaction upon its books. Transfers of shares shall be made only on the books
of the corporation by the registered holder thereof, or by his attorney
thereunto authorized by power of attorney and filed with the Secretary of the
corporation or the Transfer Agent.
SECTION 8.04. Registered Stockholders. The corporation shall be
entitled to treat the holder of record of any share or shares of the
corporation's capital stock as the holder in fact thereof and, accordingly,
shall not be bound to recognize any equitable or other claim to or interest in
such share or shares on the part of any other person, whether or not it shall
have express or other notice thereof, except as otherwise provided by the laws
of the State of Delaware.
ARTICLE IX
DIVIDENDS
SECTION 9.01. Declaration. Dividends with respect to the shares
of the corporation's capital stock, subject to the provisions of the Certificate
of Incorporation, if any, may be declared by the Board of Directors at any
regular or special meeting, pursuant to applicable law. Dividends may be paid in
cash, in property, or in shares of capital stock, subject to the provisions of
the Certificate of Incorporation.
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SECTION 9.02. Reserve. Before payment of any dividend, there may
be set aside out of any funds of the corporation available for dividends such
sum or sums as the Board of Directors from time to time, in their absolute
discretion, think proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the
corporation, or for such other purpose as the Board of Directors shall think
conducive to the interest of the corporation, and the Board of Directors may
modify or abolish any such reserve in the manner in which it was created.
ARTICLE X
INDEMNIFICATION
SECTION 10.01. Authorization of Indemnification Each person who was
or is a party or is threatened to be made a party to or is involved in any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative, investigative and whether by or in the right of the
corporation or otherwise (a "PROCEEDING"), by reason of the fact that he or she
is or was a director or officer of the corporation or is or was serving at the
request of the corporation as a director, officer, employee, partner (limited or
general) or agent of another corporation or of a partnership, joint venture,
limited liability company, trust or other enterprise, including service with
respect to an employee benefit plan, shall be (and shall be deemed to have a
contractual right to be) indemnified and held harmless by the corporation (and
any successor to the corporation by merger or otherwise) to the fullest extent
authorized by, and subject to the conditions and (except as provided herein)
procedures set forth in the Delaware General Corporation Law, as the same exists
or may hereafter be amended (but any such amendment shall not be deemed to limit
or prohibit the rights of indemnification hereunder for past acts or omissions
of any such person insofar as such amendment limits or prohibits the
indemnification rights that said law permitted the corporation to provide prior
to such amendment), against all expenses, liabilities and losses (including
attorneys' fees, judgments, fines, ERISA taxes or penalties and amounts paid or
to be paid in settlement) actually and reasonably incurred or suffered by such
person in connection therewith if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal proceeding, had
no reasonable cause to believe such person's conduct was unlawful; provided,
however, that the corporation shall indemnify any such person seeking
indemnification in connection with a proceeding (or part thereof) initiated by
such person only if such proceeding (or part thereof) was authorized by the
Board. Persons who are not directors or officers of the corporation and are not
so serving at the request of the corporation may be similarly indemnified in
respect of such service to the extent authorized at any time by the Board. The
indemnification conferred in this SECTION 10.01 also shall include the right to
be paid by the corporation (and such successor) the expenses (including
attorneys' fees) incurred in the defense of or other involvement in any such
proceeding in advance of its final disposition; provided, however, that, if and
to the extent the Delaware General Corporation Law requires, the payment of such
expenses (including attorneys' fees) incurred by a director or officer in
advance of the final disposition of a proceeding shall be made only upon
delivery to the
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corporation of an undertaking by or on behalf of such director or officer to
repay all amounts so paid in advance of it shall ultimately be determined that
such director or officer is not entitled to be indemnified under this SECTION
10.01 or otherwise; and provided, further, that such expenses incurred by other
employees and agents may be so paid in advance upon such terms and conditions,
if any, as the Board deems appropriate.
SECTION 10.02. Right of Claimant to Bring Action Against the
Corporation If a claim under SECTION 10.01 is not paid in full by the
corporation within 60 days after a written claim has been received by the
corporation, the claimant may at any time thereafter bring an action against the
corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled to the be paid also the expense
of prosecuting such action. It shall be a defense to any such action (other than
an action brought to enforce a claim for expenses incurred in connection with
any proceeding in advance of its final disposition where the required
undertaking, if any is required, has been tendered to the corporation) that the
claimant has not met the standards of conduct that make it permissible under the
Delaware General Corporation Law for the corporation to indemnify the claimant
for the amount claimed or is otherwise not entitled to indemnification under
SECTION 10.01, but the burden of proving such defense shall be on the
corporation. The failure of the corporation to have made a determination (in the
manner provided under the Delaware General Corporation Law) prior to or after
the commencement of such action that indemnification of the claimant is proper
in the circumstances because he or she has met the applicable standard of
conduct set forth in the Delaware General Corporation Law shall not be a defense
to the action or create a presumption that the claimant has not met the
applicable standard of conduct. Unless otherwise specified in an agreement with
the claimant, an actual determination by the corporation (in the manner provided
under the Delaware General Corporation Law) after the commencement of such
action that the claimant has not met such applicable standard of conduct shall
not be a defense to the action, but shall create a presumption that the claimant
has not met the applicable standard of conduct.
SECTION 10.03. Non-Exclusivity. The rights to indemnification and
advance payment of expenses provided by Section 10.01 hereof shall not be deemed
exclusive of any other rights to which those seeking indemnification and advance
payment of expense may be entitled under any Bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
or her official capacity and as to action in another capacity while holding such
office.
SECTION 10.04. Insurance, Contracts and Funding. The corporation may
maintain insurance, at its expense, to protect itself and any director, officer,
employee or agent of the corporation or another corporation, partnership, joint
venture, trust or other enterprise against any expense, liability or loss,
whether or not the corporation would have the power to indemnify such person
against such expense, liability or loss under the Delaware General Corporation
Law. The corporation, without further stockholder approval, may enter into
contracts with any director, officer, employee or agent in furtherance of the
provisions of this section and may create a trust fund, grant a security
interest or use other means (including, without limitation, a letter of credit)
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to ensure that payment of such amounts as may be necessary to effect
indemnification as provided in this section.
SECTION 10.05. Indemnification of Employees and Agents of the
Corporation.. The corporation may, by action of the Board, grant rights to
indemnification and advancement of expenses to employees or agents or groups of
employees or agents of the corporation with the same scope and effects as the
provisions of this section with respect to the indemnification and advancement
of expenses of directors and officers of the corporation; provide, however, that
an undertaking shall be made by an employee or agent only If required by the
Board.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. Seal. The corporate seal, if one is authorized by
the Board of Directors, shall have inscribed thereon the name of the
corporation, and the words "Corporate Seal, Delaware." The seal may be used by
causing it or a facsimile thereof to be impressed or affixed or otherwise
reproduced.
SECTION 11.02. Books. The books of the corporation may be kept
(subject to any provision contained in the statutes) outside the State of
Delaware at the offices of the corporation, or at such other place or places as
may be designated from time to time by the Board of Directors.
ARTICLE XII
AMENDMENT
These bylaws may be altered, amended, or repealed by a majority of the
number of directors then constituting the Board of Directors at any regular
meeting of the Board of Directors without prior notice, or at any special
meeting of the Board of Directors if notice of such alteration, amendment, or
repeal be contained in the notice of such special meeting.
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