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EXHIBIT 3.2
AMENDED AND RESTATED BYLAWS
OF
MCLEOD, INC.
1. OFFICES
1.1. REGISTERED OFFICE
The initial registered office of the Corporation shall be in
Wilmington, Delaware, and the initial registered agent in charge thereof shall
be The Prentice-Hall Corporation System, Inc.
1.2. 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 as may be necessary or useful in connection with
the business of the Corporation.
2. MEETINGS OF STOCKHOLDERS
2.1. PLACE OF MEETINGS
All meetings of the stockholders shall be held at such place
as may be fixed from time to time by the Board of Directors, the Chairperson,
the Chief Executive Officer or the President.
2.2. ANNUAL MEETINGS
The Corporation shall hold annual meetings of stockholders,
commencing with the year 1997, on such date and at such time as shall be
designated from time to time by the Board of Directors, the Chairperson, the
Chief Executive Officer or the President, at which stockholders shall elect a
Board of Directors and transact such other business as may properly be brought
before the meeting.
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2.3. SPECIAL MEETINGS
Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute, may be called by the Board of
Directors, the Chairperson, the Chief Executive Officer or the President.
2.4. NOTICE OF MEETINGS
Notice of any meeting of stockholders, stating the place, date
and hour of the meeting, and (if it is a special meeting) the purpose or
purposes for which the meeting is called, shall be given to each stockholder
entitled to vote at such meeting not less than ten nor more than sixty days
before the date of the meeting (except to the extent that such notice is waived
or is not required as provided in the General Corporation Law of the State of
Delaware (the "Delaware General Corporation Law") or these Bylaws). Such
notice shall be given in accordance with, and shall be deemed effective as set
forth in, Section 222 (or any successor section) of the Delaware General
Corporation Law.
2.5. WAIVERS OF NOTICE
Whenever the giving of any notice is required by statute, the
Certificate of Incorporation or these Bylaws, a waiver thereof, in writing and
delivered to the Corporation, signed by the person or persons entitled to said
notice, whether before or after the event as to which such notice is required,
shall be deemed equivalent to notice. Attendance of a stockholder at a meeting
shall constitute a waiver of notice (1) of such meeting, except when the
stockholder at the beginning of the meeting objects to holding the meeting or
transacting business at the meeting, and (2) (if it is a special meeting) of
consideration of a particular matter at the meeting that is not within the
purpose or purposes described in the meeting notice, unless the stockholder
objects to considering the matter at the beginning of the meeting.
2.6. BUSINESS AT SPECIAL MEETINGS
Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice (except to the extent
that such notice is waived or is not required as provided in the Delaware
General Corporation Law or these Bylaws).
2.7. LIST OF STOCKHOLDERS
After the record date for a meeting of stockholders has been
fixed, at least ten days before such meeting, the officer who has charge of the
stock ledger of the Corporation shall make a list of all stockholders entitled
to vote at the meeting,
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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 ten days
prior to the meeting, either at a place in the city where the meeting is to be
held, which place is to be specified in the notice of the meeting, or at the
place where the meeting is to be held. Such list shall also, for the duration
of the meeting, be produced and kept open to the examination of any stockholder
who is present at the time and place of the meeting.
2.8. QUORUM AT MEETINGS
Stockholders may take action on a matter at a meeting only if
a quorum exists with respect to that matter. Except as otherwise provided by
statute or by the Certificate of Incorporation, the holders of a majority of
the voting rights represented by the shares issued and outstanding and entitled
to vote at the meeting, and who are present in person or represented by proxy,
shall constitute a quorum at all meetings of the stockholders for the
transaction of business. Where a separate vote by a class or classes is
required, a majority of the outstanding shares of such class or classes,
present in person or represented by proxy, shall constitute a quorum entitled
to take action with respect to that vote on that matter. Once a share is
represented for any purpose at a meeting (other than solely to object (1) to
holding the meeting or transacting business at the meeting, or (2) (if it is a
special meeting) to consideration of a particular matter at the meeting that is
not within the purpose or purposes described in the meeting notice), it is
deemed present for quorum purposes for the remainder of the meeting and for any
adjournment of that meeting unless a new record date is or must be set for the
adjourned meeting. The holders of a majority of the voting rights represented
by the shares represented at a meeting, whether or not a quorum is present, may
adjourn such meeting from time to time.
2.9. VOTING AND PROXIES
Unless otherwise provided in the Delaware General Corporation
Law or in the Corporation's Certificate of Incorporation, and subject to the
other provisions of these Bylaws, each stockholder shall be entitled to one
vote on each matter, in person or by proxy, for each share of the Corporation's
Class A common stock that is held by such stockholder and .40 vote on each
matter, in person or by proxy, for each share of the Corporation's Class B
common stock that is held by such stockholder. No proxy shall be voted or
acted upon after three years from its date, unless the proxy provides for a
longer period. A duly executed appointment of proxy shall be irrevocable if
the appointment form 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.
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2.10. REQUIRED VOTE
When a quorum is present at any meeting of stockholders, all
matters shall be determined, adopted and approved by the affirmative vote
(which need not be by ballot) of the holders of a majority of the voting rights
represented by the shares present in person or represented by proxy at the
meeting and entitled to vote with respect to the matter, unless the proposed
action is one upon which, by express provision of any statute or of the
Certificate of Incorporation, a different vote is specified and required, in
which case such express provision shall govern and control with respect to that
vote on that matter. Where a separate vote by a class or classes is required,
the affirmative vote of the holders of a majority of the shares of such class
or classes present in person or represented by proxy at the meeting shall be
the act of such class. Notwithstanding the foregoing, directors shall be
elected in the manner specified by the Certificate of Incorporation or
applicable law.
2.11. ACTION WITHOUT A MEETING
Any action required or permitted to be taken at a
stockholders' meeting may be taken without a meeting, without prior notice and
without a vote, if the action is taken by a unanimous vote of persons who would
be entitled to vote with respect to the action at a meeting. The action must
be evidenced by one or more written consents describing the action taken,
signed by all of the stockholders who would be entitled to vote with respect to
the action at a meeting, and delivered to the Corporation for inclusion in the
minutes or filing with the corporate records. No consent shall be effective to
take the corporate action specified unless the consents are delivered to the
Corporation within sixty days of the delivery of the earliest-dated consent.
3. DIRECTORS
3.1. POWERS
The business and affairs of the Corporation shall be managed
by or under the direction of the Board of Directors, which may exercise all
such powers of the Corporation and do all such lawful acts and things, subject
to any limitation set forth in the Certificate of Incorporation or as otherwise
may be provided in the Delaware General Corporation Law.
3.2. NUMBER AND ELECTION
The number of directors which shall constitute the whole Board
of Directors shall not be fewer than three nor more than fifteen. The
directors shall be divided into three classes and elected or appointed in such
manner as shall be specified by the Certificate of Incorporation or applicable
law. The first Board of
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Directors shall consist of seven directors. Thereafter, within the limits
above specified, the number of directors shall be determined by resolution of
the Board of Directors.
3.3. NOMINATION OF DIRECTORS
The Board of Directors shall nominate candidates to stand for
election as directors; and other candidates also may be nominated by any
stockholder, provided such other nomination(s) are submitted in writing to the
Secretary of the Corporation no later than 90 days prior to the meeting of
stockholders at which such directors are to be elected, together with the
identity of the nominator and the number of shares of the Corporation's stock
owned, directly or indirectly, by the nominator. The directors shall be
elected at the annual meeting of the stockholders, except as provided in
Section 3.4 hereof, and each director elected shall hold office until such
director's successor is elected and qualified or until the director's earlier
death, resignation or removal. Directors need not be stockholders.
3.4. VACANCIES
Vacancies and newly created directorships resulting from any
increase in the authorized number of directors shall be filled in such manner
as shall be fixed by, or in the manner specified in, the Certificate of
Incorporation.
3.5. MEETINGS
3.5.1. REGULAR MEETINGS
Regular meetings of the Board of Directors may be held without
notice at such time and at such place as shall from time to time be determined
by the Board of Directors.
3.5.2. SPECIAL MEETINGS
Special meetings of the Board of Directors may be called by
the Chairperson, Chief Executive Officer or President on one day's notice to
each director, either personally or by telephone, express delivery service (so
that the scheduled delivery date of the notice is at least one day in advance
of the meeting), telegram or facsimile transmission, and on five days' notice
by mail (effective upon deposit of such notice in the mail). The notice need
not describe the purpose of a special meeting.
3.5.3. TELEPHONE MEETINGS
Members of the Board of Directors may participate in a meeting
of the Board of Directors by any communication by means of which all
participating
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directors can simultaneously hear each other during the meeting. A director
participating in a meeting by this means is deemed to be present in person at
the meeting.
3.5.4. ACTION WITHOUT MEETING
Any action required or permitted to be taken at any meeting of
the Board of Directors may be taken without a meeting if the action is taken by
all members of the Board of Directors. The action must be evidenced by one or
more written consents describing the action taken, signed by each director, and
delivered to the Corporation for inclusion in the minute book.
3.5.5. WAIVER OF NOTICE OF MEETING
A director may waive any notice required by statute, the
Certificate of Incorporation or these Bylaws before or after the date and time
stated in the notice. Except as set forth below, the waiver must be in
writing, signed by the director entitled to the notice, and delivered to the
Corporation for inclusion in the minute book. Notwithstanding the foregoing, a
director's attendance at or participation in a meeting waives any required
notice to the director of the meeting unless the director at the beginning of
the meeting objects to holding the meeting or transacting business at the
meeting and does not thereafter vote for or assent to action taken at the
meeting.
3.6. QUORUM AND VOTE AT MEETINGS
At all meetings of the Board of Directors, a quorum of the
Board of Directors consists of a majority of the total number of directors
prescribed pursuant to Section 3.2 of these Bylaws. The vote 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 or by the Certificate of Incorporation or by these Bylaws.
3.7. COMMITTEES OF DIRECTORS
The Board of Directors may by resolution create one or more
committees and appoint members of the Board of Directors to serve on the
committees at the pleasure of the Board of Directors. The Board of Directors
may designate one or more directors as alternate members of any committee, who
may replace any absent or disqualified member at any meeting of the committee.
If a member of a committee shall be absent from any meeting, or disqualified
from voting thereat, the remaining member or members present and not
disqualified from voting, whether or not such member or members constitute a
quorum, may, by unanimous vote, appoint another member of the Board of
Directors to act at the meeting in the place of such absent or disqualified
member. Any such committee, to
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the extent provided in the resolution of the Board of Directors, shall have and
may exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the Corporation; but no such
committee shall have the power or authority to amend the Certificate of
Incorporation (except that a committee may, to the extent authorized in the
resolution or resolutions providing for the issuance of shares of stock adopted
by the Board of Directors pursuant to Section 151(a) of the Delaware General
Corporation Law, fix the designations and any of the preferences or rights of
such shares relating to dividends, redemption, dissolution, any distribution of
assets of the Corporation or the conversion into, or the exchange of such
shares for, shares of any other class or classes or any other series of the
same or any other class or classes of stock of the Corporation or fix the
number of shares of stock or authorize the increase or decrease of the shares
of any series), adopt an agreement of merger or consolidation pursuant to
Sections 251 or 252 of the Delaware General Corporation Law, recommend to the
stockholders the sale, lease or exchange of all or substantially all of the
Corporation's property and assets, recommend to the stockholders a dissolution
of the Corporation or a revocation of a dissolution, or amend the Bylaws; and
unless the resolutions, these Bylaws or the Certificate of Incorporation
expressly so provide, no such committee shall have the power or authority to
declare a dividend, to authorize the issuance of stock, or to adopt a
certificate of ownership and merger pursuant to Section 253 of the Delaware
General Corporation Law. Such committee or committees shall have such name or
names as may be determined from time to time by resolution adopted by the Board
of Directors. Each committee shall keep regular minutes of its meetings and
report the same to the Board of Directors, when required. Unless otherwise
specified in the Board resolution appointing the Committee, all provisions of
the Delaware General Corporation Law and these Bylaws relating to meetings,
action without meetings, notice (and waiver thereof), and quorum and voting
requirements of the Board of Directors apply, as well, to such committees and
their members.
3.8. COMPENSATION OF DIRECTORS
The Board of Directors shall have the authority to fix the
compensation of directors. No such payment shall preclude any director from
serving the Corporation in any other capacity and receiving compensation
therefor.
4. OFFICERS
4.1. POSITIONS
The officers of the Corporation shall be a President, a
Secretary and a Treasurer, and such other officers as the Board of Directors
(or an officer authorized by the Board of Directors) from time to time may
appoint, including a Chairperson, a Chief Executive Officer, and one or more
Vice Chairmen, Senior Vice Presidents,
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Vice Presidents, Assistant Secretaries and Assistant Treasurers. Each such
officer shall exercise such powers and perform such duties as shall be set
forth below and such other powers and duties as from time to time may be
specified by the Board of Directors or by any officer(s) authorized by the
Board of Directors to prescribe the duties of such other officers. Any number
of offices may be held by the same person, except that in no event shall the
President and the Secretary be the same person. Each of the Chairperson, Chief
Executive Officer, President, and/or any Senior Vice President or Vice
President may execute bonds, mortgages and other documents, except where
required or permitted by law to be otherwise executed and except where the
execution thereof shall be expressly delegated by the Board of Directors to
some other officer or agent of the Corporation.
4.2. CHAIRPERSON
The Chairperson shall (when present) preside at all meetings
of the Board of Directors and stockholders, and shall ensure that all orders
and resolutions of the Board of Directors and stockholders are carried into
effect. The Chairperson may execute bonds, mortgages and other contracts,
except where required or permitted by law to be otherwise signed and executed
and except where the signing and execution thereof shall be expressly delegated
by the Board of Directors to some other officer or agent of the Corporation.
4.3. CHIEF EXECUTIVE OFFICER
Subject to the authority of the Board of Directors, the Chief
Executive Officer shall direct and supervise the business, operations, and
affairs of the Corporation and perform such other duties as may be assigned him
from time to time by the Board of Directors. In the absence of the
Chairperson, or if no Chairperson shall have been appointed, the Chief
Executive Officer shall (when present) preside at all meetings of the Board of
Directors and stockholders, and shall ensure that all orders and resolutions of
the Board of Directors and stockholders are carried into effect. The Chief
Executive Officer may execute bonds, mortgages and other contracts, except
where required or permitted by law to be otherwise signed and executed and
except where the signing and execution thereof shall be expressly delegated by
the Board of Directors to some other officer or agent of the Corporation.
4.4. PRESIDENT
The President shall be the chief operating officer of the
Corporation and shall have responsibility and authority for management of the
day-to-day operations of the Corporation, subject to the authority of the Chief
Executive Officer and the Board of Directors. The President may execute bonds,
mortgages and other contracts, except where required or permitted by law to be
otherwise signed and
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executed and except where the signing and execution thereof shall be expressly
delegated by the Board of Directors to some other officer or agent of the
Corporation.
4.5. VICE PRESIDENT
In the absence of the President or in the event of the
President's inability or refusal to act, the Vice President (or in the event
there shall be more than one Vice President, the Vice Presidents in the order
designated, or in the absence of any designation, then in the order of their
election) shall perform the duties of the President, and when so acting shall
have all the powers of, and be subject to all the restrictions upon, the
President.
4.6. SECRETARY
The Secretary shall have responsibility for preparation of
minutes of meetings of the Board of Directors and of the stockholders and for
authenticating records of the Corporation. The Secretary shall give, or cause
to be given, notice of all meetings of the stockholders and special meetings of
the Board of Directors. The Secretary or an Assistant Secretary may also
attest all instruments signed by any other officer of the Corporation.
4.7. ASSISTANT SECRETARY
The Assistant Secretary, or if there shall be more than one,
the Assistant Secretaries in the order determined by the Board of Directors (or
if there shall have been no such determination, then in the order of their
election), shall, in the absence of the Secretary or in the event of the
Secretary's inability or refusal to act, perform the duties and exercise the
powers of the Secretary.
4.8. TREASURER
The Treasurer shall be the chief financial officer of the
Corporation and shall have responsibility for the custody of the corporate
funds and securities and shall see to it that full and accurate accounts of
receipts and disbursements are kept in books belonging to the Corporation. The
Treasurer shall render to the Chairperson, the Chief Executive Officer, the
President, and the Board of Directors, upon request, an account of all
financial transactions and of the financial condition of the Corporation.
4.9. ASSISTANT TREASURER
The Assistant Treasurer, or if there shall be more than one,
the Assistant Treasurers in the order determined by the Board of Directors (or
if there
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shall have been no such determination, then in the order of their election),
shall, in the absence of the Treasurer or in the event of the Treasurer's
inability or refusal to act, perform the duties and exercise the powers of the
Treasurer.
4.10. TERM OF OFFICE
The officers of the Corporation shall hold office until their
successors are chosen and qualify or until their earlier resignation or
removal. Any officer may resign at any time upon written notice to the
Corporation. Any officer elected or appointed by or at the direction of the
Board of Directors may be removed at any time, with or without cause, by the
affirmative vote of a majority of the Board of Directors.
4.11. COMPENSATION
The compensation of officers of the Corporation shall be fixed
by the Board of Directors or by any officer(s) authorized by the Board of
Directors to prescribe the compensation of such other officers.
4.12. FIDELITY BONDS
The Corporation may secure the fidelity of any or all of its
officers or agents by bond or otherwise.
5. CAPITAL STOCK
5.1. CERTIFICATES OF STOCK; UNCERTIFICATED SHARES
The shares of the Corporation shall be represented by
certificates, provided that the Board of Directors may provide by resolution
that some or all of any or all classes or series of the Corporation's stock
shall be uncertificated shares. Any such resolution shall not apply to shares
represented by a certificate until such certificate is surrendered to the
Corporation. Notwithstanding the adoption of such a resolution by the Board of
Directors, every holder of stock represented by certificates, and upon request
every holder of uncertificated shares, shall be entitled to have a certificate
(representing the number of shares registered in certificate form) signed in
the name of the Corporation by the Chairperson, Chief Executive Officer,
President or any Vice President, and by the Treasurer, Secretary or any
Assistant Treasurer or Assistant Secretary of the Corporation. Any or all of
the signatures on the certificate may be by facsimile. In case any officer,
transfer agent or registrar whose signature or facsimile signature appears on a
certificate shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, it may be issued by the Corporation with the
same effect as if such person were such officer, transfer agent or registrar at
the date of issue.
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5.2. LOST CERTIFICATES
The Board of Directors, Chairperson, Chief Executive Officer,
President or Secretary may direct a new certificate of stock to be issued in
place of any certificate theretofore issued by the Corporation and alleged to
have been lost, stolen or destroyed, upon the making of an affidavit of that
fact by the person claiming that the certificate of stock has been lost, stolen
or destroyed. When authorizing such issuance of a new certificate, the Board
of Directors or any such officer may, as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificate or
certificates, or such owner's legal representative, to advertise the same in
such manner as the Board of Directors or such officer shall require and/or to
give the Corporation a bond or indemnity, in such sum or on such terms and
conditions as the Board of Directors or such officer may direct, as indemnity
against any claim that may be made against the Corporation on account of the
certificate alleged to have been lost, stolen or destroyed or on account of the
issuance of such new certificate or uncertificated shares.
5.3. RECORD DATE
5.3.1. ACTIONS BY STOCKHOLDERS
In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders, the Board of
Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors, and which record date shall not be more than sixty days nor less
than ten days before the date of such meeting. If no record date is fixed by
the Board of Directors, the record date for determining stockholders entitled
to notice of or to vote at a meeting of stockholders shall be the close of
business on the day next preceding the day on which notice is given, or, if
notice is waived, at the close of business on the day next preceding the day on
which the meeting is held. A determination of stockholders of record entitled
to notice of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting, unless the Board of Directors fixes a new record
date for the adjourned meeting.
In order that the Corporation may determine the stockholders
entitled to consent to corporate action in writing without a meeting, the Board
of Directors may fix a record date, which record date shall not precede the
date upon which the resolution fixing the record date is adopted by the Board
of Directors, and which record date shall not be more than ten days after the
date upon which the resolution fixing the record date is adopted by the Board
of Directors. If no record date has been fixed by the Board of Directors, the
record date for determining stockholders entitled to consent to corporate
action in writing without a meeting, when no prior action by the Board of
Directors is required by the Delaware General
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Corporation Law, shall be the first date on which a signed written consent
setting forth the action taken or proposed to be taken is delivered to the
Corporation in the manner prescribed by Section 213(b) of the Delaware General
Corporation Law. If no record date has been fixed by the Board of Directors and
prior action by the Board of Directors is required by the Delaware General
Corporation Law, the record date for determining stockholders entitled to
consent to corporate action in writing without a meeting shall be at the close
of business on the day on which the Board of Directors adopts the resolution
taking such prior action.
5.3.2. PAYMENTS
In order that the Corporation may determine the stockholders
entitled to receive payment of any dividend or other distribution or allotment
of any rights or 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, the Board of Directors may fix a record date, which record date
shall not precede the date upon which the resolution fixing the record date is
adopted, and which record date shall be not more than sixty days prior to such
action. If no record date is fixed, the record date for determining
stockholders for any such purpose shall be at the close of business on the day
on which the Board of Directors adopts the resolution relating thereto.
5.4. STOCKHOLDERS OF RECORD
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, to receive notifications, to vote as such owner, and to exercise all
the rights and powers of an owner. The Corporation 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 may be provided by the Delaware General
Corporation Law.
6. INDEMNIFICATION
6.1. 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 or investigative and
whether by or in the right of the Corporation or otherwise (a "proceeding"), by
reason of the fact that he or she, or a person of whom he or she is the legal
representative, 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
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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)
reasonably incurred or suffered by such person in connection therewith;
provided, however, that the Corporation shall indemnify any such person seeking
indemnification in connection with a proceeding (or part thereof) initiated by
such person (except for a suit or action pursuant to Section 6.2 hereof) only
if such proceeding (or part thereof) was authorized by the Board of Directors
of the Corporation. Persons who are not directors or officers of the
Corporation may be similarly indemnified in respect of such service to the
extent authorized at any time by the Board of Directors of the Corporation. The
indemnification conferred in this Section 6.1 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 Corporation of an undertaking by or on behalf of such director
or officer to repay all amounts so paid in advance if it shall ultimately be
determined that such director or officer is not entitled to be indemnified
under this Section 6.1 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 of Directors deems appropriate.
6.2. RIGHT OF CLAIMANT TO BRING ACTION AGAINST THE CORPORATION
If a claim under Section 6.1 is not paid in full by the
Corporation within sixty 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 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 which make it permissible under
the Delaware General Corporation Law for the
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Corporation to indemnify the claimant for the amount claimed or is otherwise
not entitled to indemnification under Section 6.1, but the burden of proving
such defense shall be on the Corporation. The failure of the Corporation (in
the manner provided under the Delaware General Corporation Law) to have made a
determination 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.
6.3. NON-EXCLUSIVITY
The rights to indemnification and advance payment of expenses
provided by Section 6.1 hereof shall not be deemed exclusive of any other
rights to which those seeking indemnification and advance payment of expenses
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.
6.4. SURVIVAL OF INDEMNIFICATION
The indemnification and advance payment of expenses and rights
thereto provided by, or granted pursuant to, Section 6.1 hereof shall, unless
otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director, officer, employee, partner or agent and shall inure to
the benefit of the personal representatives, heirs, executors and
administrators of such person.
6.5. INSURANCE
The Corporation shall have power to 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, partner (limited or general) or
agent of another corporation or of a partnership, joint venture, limited
liability company, trust or other enterprise, against any liability asserted
against such person
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or incurred by such person in any such capacity, or arising out of such
person's status as such, and related expenses, whether or not the Corporation
would have the power to indemnify such person against such liability under the
provisions of the Delaware General Corporation Law.
7. GENERAL PROVISIONS
7.1 INSPECTION OF BOOKS AND RECORDS
Any stockholder, in person or by attorney or other agent,
shall, upon written demand under oath stating the purpose thereof, have the
right during the usual hours for business to inspect for any proper purpose the
Corporation's stock ledger, a list of its stockholders, and its other books and
records, and to make copies or extracts therefrom. A proper purpose shall mean
a purpose reasonably related to such person's interest as a stockholder. In
every instance where an attorney or other agent shall be the person who seeks
the right to inspection, the demand under oath shall be accompanied by a power
of attorney or such other writing which authorizes the attorney or other agent
to so act on behalf of the stockholder. The demand under oath shall be
directed to the Corporation at its registered office or at its principal place
of business.
7.2. DIVIDENDS
The Board of Directors may declare dividends upon the capital
stock of the Corporation, subject to the provisions of the Certificate of
Incorporation and the laws of the State of Delaware.
7.3. RESERVES
The Board of Directors of the Corporation may set apart, out
of the funds of the Corporation available for dividends, a reserve or reserves
for any proper purpose and may abolish any such reserve.
7.4. EXECUTION OF INSTRUMENTS
All checks, drafts or other orders for the payment of money,
and promissory notes of the Corporation shall be signed by such officer or
officers or such other person or persons as the Board of Directors may from
time to time designate.
7.5 FISCAL YEAR
The fiscal year of the Corporation shall be fixed by resolution of
the Board of Directors.
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7.6. SEAL
The Corporation shall not have a corporate seal. All
instruments that are executed on behalf of the Corporation which are
acknowledged and which affect an interest in real estate shall be executed by
the Chairperson, the Chief Executive Officer, the President or any Vice
President and by the Secretary, the Treasurer, any Assistant Secretary or any
Assistant Treasurer, except where required or permitted by law to be otherwise
executed and except where the execution thereof shall be expressly delegated by
the Board of Directors to some other officer or agent of the Corporation.
* * * * *
The foregoing Bylaws were adopted by the Board of Directors on
____________, 1996, and by the stockholders on _____________, 1996.
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Casey D. Mahon
Secretary