25
EXHIBIT 3(b)
SECOND AMENDED AND RESTATED BY-LAWS
HARTE-HANKS, INC.
(A DELAWARE CORPORATION)
AS ADOPTED AND IN EFFECT ON SEPTEMBER 5, 2001
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HARTE-HANKS, INC.
(A DELAWARE CORPORATION)
SECOND AMENDED AND RESTATED BY-LAWS
AS ADOPTED AND IN EFFECT ON SEPTEMBER 5, 2001
ARTICLE I - STOCKHOLDERS
Section 1.1 Annual Meetings. An annual meeting of the stockholders, for the
election of directors to succeed those whose terms expire and for the
transaction of such other business as may properly come before the meeting,
shall be held on such date and at such time as the Board of Directors of the
Corporation (the "Board") shall each year fix, which date shall be within 13
months subsequent to the date of the last annual meeting of stockholders. An
annual meeting may be held either at a place, within or without the State of
Delaware, or by means of remote communication as the Board in its sole
discretion may determine.
Section 1.2 Special Meetings. Special meetings of the stockholders, for any
purpose or purposes prescribed in the notice of the meeting, may be called by
the Board or the Chief Executive Officer of the Corporation and shall be held on
such date and at such time as the Board or such officer shall fix. A special
meeting may be held either at a place, within or without the State of Delaware,
or by means of remote communication as the Board in its sole discretion may
determine.
Section 1.3 Notice of Stockholder Business; Nominations. No business
may be transacted at an annual meeting of stockholders, other than business that
is either (i) specified in
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the notice of meeting (or any supplement thereto) given by or at the direction
of the Board (or any duly authorized committee thereof), (ii) otherwise properly
brought before the annual meeting by or at the direction of the Board (or any
duly authorized committee thereof) or (iii) otherwise properly brought before
the annual meeting by any stockholder of the Corporation (1) who is a
stockholder of record on the date of the giving of the notice provided for in
this Section 1.3 and on the record date for the determination of stockholders
entitled to vote at such annual meeting and (2) who complies with the notice
procedures set forth in this Section 1.3. For business to be properly brought
before an annual meeting by a stockholder, including a nomination of a person
for election to the Board to be made by a stockholder, such stockholder must
have given timely notice thereof in proper written form to the Secretary of the
Corporation and such business must otherwise be a proper matter for stockholder
action.
No business may be transacted at a special meeting of stockholders
other than business that is specified in the Corporation's notice of such
meeting. Nominations of persons for election to the Board may be made at a
special meeting of stockholders at which directors are to be elected pursuant to
the Corporation's notice of such meeting (a) by or at the direction of the Board
or (b) provided that the Board has determined that directors shall be elected at
such special meeting, by any stockholder who shall be entitled to vote at the
meeting and who complies with the notice procedures set forth in this Section
1.3.
To be timely, a stockholder's notice to the Secretary of the
Corporation must be delivered to or mailed and received at the principal
executive offices of the Corporation (i) in the case of an annual meeting, not
less than 60 days nor more than 90 days prior to the anniversary date of the
immediately preceding annual meeting of stockholders; provided, however, in the
event that the annual meeting is called for a date that is not within 30 days
before or after such anniversary
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date, notice by the stockholder in order to be timely must be so received not
later than the close of business on the tenth day following the day on which
such notice of the date of the annual meeting was mailed or such public
disclosure of the date of the annual meeting was made, whichever first occurs;
and (ii) in the case of a special meeting of stockholders called for the purpose
of electing directors, not later than the close of business on the tenth day
following the day on which notice of the date of the special meeting was mailed
or public disclosure of the date of the special meeting was made, whichever
first occurs.
To be in proper written form, a stockholder's notice to the Secretary
of the Corporation must set forth as to each matter such stockholder proposes to
bring before the annual meeting (1) a brief description of the business desired
to be brought before the annual meeting and the reasons for conducting such
business at the annual meeting, (2) the name and record address of such
stockholder, (3) the class or series and number of shares of capital stock of
the Corporation which are owned beneficially or of record by such stockholder,
(4) a description of all arrangements or understandings between such stockholder
and any other person or persons (including their names) in connection with the
proposal of such business by such stockholder and any material interest of such
stockholder in such business and (5) a representation that such stockholder
intends to appear in person or by proxy at the annual meeting to bring such
business before the meeting.
To be in proper written form with respect to stockholder nominations
for director, a stockholder's notice to the Secretary must set forth (a) as to
each person whom the stockholder proposes to nominate for election as a director
(i) the name, age, business address and residence address of the person, (ii)
the principal occupation or employment of the person, (iii) the class or series
and number of shares of capital stock of the Corporation which are owned
beneficially or
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of record by the person and (iv) any other information relating to the person
that would be required to be disclosed in a proxy statement or other filings
required to be made in connection with solicitations of proxies for election of
directors pursuant to Section 14 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and the rules and regulations promulgated
thereunder; and (b) as to the stockholder giving the notice (i) the name and
record address of such stockholder, (ii) the class or series and number of
shares of capital stock of the Corporation which are owned beneficially or of
record by such stockholder, (iii) a description of all arrangements or
understanding between such stockholder and each proposed nominee and any other
person or persons (including their names) pursuant to which the nomination(s)
are to be made by such stockholder, (iv) a representation that such stockholder
intends to appear in person or by proxy at the meeting to nominate the persons
named in its notice and (v) any other information relating to such stockholder
that would be required to be disclosed in a proxy statement or other filings
required to be made in connection with solicitations of proxies for election of
directors pursuant to Section 14 of the Exchange Act and the rules and
regulations promulgated thereunder. Such notice must be accompanied by a written
consent of each proposed nominee to being named as a nominee and to serve as a
director if elected.
No business shall be conducted at the annual meeting of stockholders
except business brought before the annual meeting in accordance with the
procedures set forth in this Section 1.3, provided, however, that, once business
has been properly brought before the annual meeting in accordance with such
procedures, nothing in this Section 1.3 shall be deemed to preclude discussion
by any stockholder of any such business. If the presiding officer at an annual
meeting determines that business was not properly brought before the annual
meeting in accordance with
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the foregoing procedures, the presiding officer shall declare to the meeting
that the business was not properly brought before the meeting and such business
shall not be transacted.
No person shall be eligible for election as a stockholder nominee of
the Corporation unless nominated in accordance with the procedures set forth in
this Section 1.3. If the presiding officer of the meeting determines that a
nomination was not made in accordance with the foregoing procedures, the
presiding officer shall declare to the meeting that the nomination was defective
and such defective nomination shall be disregarded.
Notwithstanding the foregoing provisions of this Section 1.3, a
stockholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters set
forth herein. Nothing in this Section 1.3 shall be deemed to affect any rights
of stockholders to request inclusion of proposals in the Corporation's proxy
statement pursuant to Rule 14a-8 under the Exchange Act.
Section 1.4 Notice of Meetings. Notice of all meetings of the
stockholders shall be given in writing or by electronic transmission in the
manner provided by law (meaning, here and hereinafter, as required from time to
time by the Delaware General Corporation Law (the "DGCL") or the Certificate of
Incorporation of the Corporation) stating the date, time and place, if any, of
the meeting and, in case of a special meeting, the purpose or purposes for which
the meeting is called. Such notice shall be given not less than ten nor more
than 60 days before the date on which the meeting is to be held, to each
stockholder entitled to vote at such meeting, except as otherwise provided
herein or required by law.
When a meeting is adjourned to another date, time or place (if any),
written notice need not be given of the adjourned meeting if the date, time or
place (if any) thereof are announced at
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the meeting at which the adjournment is taken; provided, however, that if the
date of any adjourned meeting is more than 30 days after the date for which the
meeting was originally noticed, or if a new record date is fixed for the
adjourned meeting, written notice of the date, time and place (if any) of the
adjourned meeting shall be given in conformity herewith. At any adjourned
meeting, any business may be transacted which might have been transacted at the
original meeting.
Section 1.5 Quorum. At any meeting of the stockholders, the holders of
a majority of all of the shares of the stock entitled to vote at the meeting,
present in person or by proxy, shall constitute a quorum for all purposes,
unless or except to the extent that the presence of a larger number may be
required by law.
Where a separate vote by 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.
When any meeting is convened, the presiding officer, if directed by the
Board, may adjourn the meeting if (a) no quorum is present for the transaction
of business, or (b) the Board determines that adjournment is necessary or
appropriate to enable the stockholders (i) to consider fully information which
the Board determines has not been made sufficiently or timely available to
stockholders or (ii) otherwise to exercise effectively their voting rights.
Prior to the time when any meeting is convened the officer who would be the
presiding officer at such meeting, if directed by the Board, may postpone the
meeting if the Board determines that adjournment is necessary or appropriate to
enable the stockholders (a) to consider fully information which the
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Board determines has not been made sufficiently or timely available to
stockholders or (b) otherwise to exercise effectively their voting rights.
If a notice of any adjourned special meeting of stockholders is sent to
all stockholders entitled to vote thereat, stating that it will be held with
those present constituting a quorum, then except as otherwise required by law,
those present at such adjourned meeting shall constitute a quorum, and all
matters shall be determined by a majority of the votes cast at such meeting.
Section 1.6 Organization. Such person as the Board may have designated
or, in the absence of such a person, the Chief Executive Officer of the
Corporation or, in his or her absence, such person as may be chosen by the
holders of a majority of the shares entitled to vote who are present, in person
or by proxy, shall call to order any meeting of the stockholders and act as
chairman of the meeting. In the absence of the Secretary of the Corporation, the
secretary of the meeting shall be such person as the chairman appoints.
Section 1.7 Conduct of Business. The chairman of any meeting of
stockholders shall determine the order of business and the procedure at the
meeting, including such regulation of the manner of voting and the conduct of
discussion as seem to him or her in order.
Section 1.8 Proxies and Voting. At any meeting of the stockholders,
every stockholder entitled to vote may vote in person or by proxy. Such a proxy
may be prepared, transmitted and delivered in any manner established for the
meeting and permitted by law.
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Each stockholder shall have one vote for every share of stock entitled
to vote which is registered in his or her name on the record date for the
meeting, except as otherwise provided herein or required by law.
All voting, including on the election of directors but excepting where
otherwise required by law, may be by a voice vote; provided, however, that upon
demand therefore by a stockholder entitled to vote or his or her proxy, a stock
vote shall be taken. Every stock vote shall be taken by ballots, each of which
shall state the name of the stockholder or proxy voting and such other
information as may be required under the procedure established for the meeting
and, if authorized by the Board, the ballot may be submitted by electronic
transmission in the manner provided by law. Every vote taken by ballots shall be
counted by an inspector or inspectors appointed by the chairman of the meeting.
All elections shall be determined by a plurality of the votes cast, and
except as otherwise required by law, all other matters shall be determined by a
majority of the votes cast. Where a separate vote by class is required, unless
otherwise prescribed by law, the affirmative vote 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.
Section 1.9 Stock List. A complete list of stockholders entitled to
vote at any meeting of stockholders, arranged in alphabetical order for each
class of stock and showing the record address of each such stockholder and the
number of shares registered in his or her name, 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 on
a reasonably accessible electronic network as permitted by law (provided that
the information
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required to gain access to the list is provided with the notice of the meeting)
or during normal business hours at the principal place of business of the
Corporation. If the meeting is to be held at a place, 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 at the meeting.
If the meeting is held solely by means of remote communication, then the list
shall be open to the examination of any stockholder during the whole time of the
meeting on a reasonably accessible electronic network, and the information
required to access the list shall be provided with the notice of the meeting.
This list shall presumptively determine the identity of the stockholders
entitled to vote at the meeting and the number of shares held by each of them.
ARTICLE II - BOARD OF DIRECTORS
Section 2.1 Number and Term of Office. The number of directors who
shall constitute the whole board shall be such number as the Board shall at the
time have designated, except that in the absence of any such designation, such
number shall be seven. Each director shall be elected for a term of three years
and until his or her successor is elected and qualified, except as otherwise
provided herein or required by law.
Whenever the authorized number of directors is increased between annual
meetings of the stockholders, a majority of the directors then in office shall
have the power to elect such new directors for the balance of a term and until
their successors are elected and qualified. Any decrease in the authorized
number of directors shall not become effective until the expiration of the term
of the directors then in office unless, at the time of such decrease, there
shall be vacancies on the Board which are being eliminated by the decrease.
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Section 2.2 Vacancies. If the office of any director becomes vacant by
reason of death, resignation, disqualification, removal or other cause, a
majority of the directors remaining in office, although less than a quorum, may
elect a successor for the unexpired term and until his or her successor is
elected and qualified.
Section 2.3 Regular Meetings. Regular meetings of the Board shall be
held at such place or places on such date or dates, and at such time or times as
shall have been established by the Board and publicized among all directors.
Further notice of each regular meeting shall not be required.
Section 2.4 Special Meetings. Special meetings of the Board may be
called by one-third of the directors then in office (rounded up to the nearest
whole number) or by the Chief Executive Officer of the Corporation and shall be
held at such place, on such date, and at such time as they or such officer shall
fix. Notice of the place, date, and time of each such special meeting shall be
given each director by whom it is not waived at least five days before the
meeting if the notice is mailed, or at least 24 hours before the meeting if such
notice is given by telephone, hand delivery, telegram, telex, mailgram,
facsimile, electronic mail or other means of electronic transmission. Unless
otherwise indicated in the notice thereof, any and all business may be
transacted at a special meeting.
Section 2.5 Quorum. At any meeting of the Board, a majority of the
total number of the whole Board shall constitute a quorum for all purposes. If a
quorum shall fail to attend any meeting, a majority of those present may adjourn
the meeting to another place, date, or time,
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without further notice or waiver thereof.
Section 2.6 Remote Meetings Permitted. Members of the Board, or of any
committee thereof, may participate in a meeting of the Board or committee by
means of conference telephone or other communications equipment by means of
which all persons participating in the meeting can hear each other and such
participation pursuant to a conference telephone or other communications
equipment shall constitute presence in person at such meeting.
Section 2.7 Conduct of Business. At any meeting of the Board, business
shall be transacted in such order and manner as the Board may from time to time
determine, and all matters shall be determined by the vote of a majority of the
directors present, except as otherwise provided herein or required by law.
Action may be taken by the Board without a meeting if all members thereof
consent thereto in writing or by electronic transmission, and the writing or
writings or electronic transmission or transmissions are filed with the minutes
of proceedings of the Board. Such filing shall be in paper form if the minutes
are maintained in paper form and shall be in electronic form if the minutes are
maintained in electronic form.
Section 2.8 Powers. The Board may, except as otherwise required by law,
exercise all such powers and do all such acts and things as may be exercised or
done by the Corporation, including, without limiting the generality of the
foregoing, the unqualified power:
(1) To declare dividends from time to time in accordance with law;
(2) To purchase or otherwise acquire any property, rights or
privileges on such terms as it shall determine;
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(3) To authorize the creation, making and issuance, in such form as it
may determine, of written obligations of every kind, negotiable or
non-negotiable, secured or unsecured, and to do all things necessary in
connection therewith;
(4) To remove any officer of the Corporation with or without cause,
and from time to time to devolve the powers and duties of any officer upon
any other person for the time being;
(5) To confer upon any officer of the Corporation the power to
appoint, remove and suspend subordinate officers, employees and agents;
(6) To adopt from time to time such stock, option, stock purchase,
bonus or other compensation plans for directors, officers, employees and
agents of the Corporation and its subsidiaries as it may determine;
(7) To adopt from time to time such insurance, retirement, and other
benefit plans for directors, officers, employees and agents of the
Corporation and its subsidiaries as it may determine;
(8) To adopt from time to time regulations, not inconsistent with
these By-laws, for the management of the Corporation's business and
affairs; and
(9) To appoint a Chairman to preside at meetings of the Board and to
perform such other duties as may be specified from time to time by the
Board.
Section 2.9 Compensation of Directors. Directors, as such, may receive,
pursuant to resolution of the Board, fixed fees and other compensation for their
services as directors, including, without limitation, their services as members
of committees of the Board.
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ARTICLE III - COMMITTEES
Section 3.1 Committees of the Board of Directors. The Board, by a vote
of a majority of the whole Board, may from time to time designate committees of
the Board, with such lawfully delegable powers and duties as it thereby confers,
to serve at the pleasure of the Board and shall, for those committees and any
others provided for herein, elect a director or directors to serve as the member
or members, designating, if it desires, other directors as alternate members who
may replace any absent or disqualified member at any meeting of the committee.
Any committee so designated may exercise the power and authority of the Board 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 DGCL, if the
resolution which designates the committee or a supplemental resolution of the
Board shall so provide. In the absence or disqualification of any member of any
committee and any alternate member in his or her place, the member or members of
the committee present at the meeting 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 to act at the meeting in the place of the absent or
disqualified member.
Section 3.2 Conduct of Business. Each committee may determine the
procedural rules for meeting and conducting its business and shall act in
accordance therewith, except as otherwise provided herein or required by law.
Adequate provision shall be made for notice to members of all meetings;
one-third of the members shall constitute a quorum unless the committee shall
consist of one or two members, in which event one member shall constitute a
quorum; and all matters shall be determined by a majority vote of the members
present. Action may be taken by any committee without a meeting if all members
thereof consent thereto in
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writing or by electronic transmission, and the writing or writings or electronic
transmission or transmissions are filed with the minutes of the proceedings of
such committee. Such filing shall be in paper form if the minutes are maintained
in paper form and shall be in electronic form if the minutes are maintained in
electronic form.
ARTICLE IV - OFFICERS
Section 4.1 Generally. The officers of the Corporation shall consist of
a Chief Executive Officer, a President, one or more Vice Presidents, a Secretary
and such other officers, including a Chairman of the Board, as may from time to
time be appointed by the Board. Officers shall be elected by the Board, which
shall consider that subject at its first meeting after every annual meeting of
stockholders. Each officer shall hold office until his or her successor is
elected and qualified or until his or her earlier resignation or removal. Any
number of offices may be held by the same person.
Section 4.2 Chairman of the Board. The Board may, in its discretion,
choose a Chairman of the Board. In the event that there is a Chairman of the
Board, he or she shall preside at all meetings of the Board and shall have and
perform such duties as are prescribed by these By-laws and as may delegated by
the Board may from time to time.
Section 4.3 Chief Executive Officer. The Board shall designate either
the Chairman of the Board or the President to serve as the Chief Executive
Officer of the Corporation. Subject to the control of the Board, the Chief
Executive Officer shall be vested with authority to act for the Corporation and
shall have supervisory direction and control of the business and affairs of the
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Corporation and such other general powers and duties of supervision and
management which are commonly incident to the office of Chief Executive Officer
or that are delegated to him or her by the Board.
Section 4.4 The President. The President shall be the chief operating
officer of the Corporation. Subject to the provisions of these By-laws and to
the direction of the Board and the supervisory powers of the Chief Executive
Officer of the Corporation, the President shall have the responsibility for the
general management and control of the business and affairs of the Corporation
and shall perform all duties and have all powers which are commonly incident to
the office of President or that are delegated to him or her by the Board. The
President shall have power to sign all stock certificates, contracts and other
instruments of the Corporation, which are authorized and shall have general
supervision and direction of all of the other officers, employees and agents of
the Corporation (other than the Chief Executive Officer of the Corporation, if
the Chief Executive Officer is an officer other than the President).
Section 4.5 Vice President. Each Vice President shall have such powers
and duties as are commonly incident to the office of Vice President or that are
delegated to him or her by the Board. A Vice President may be designated by the
Board to perform the duties and exercise the powers of the President in the
event of the President's absence or disability.
Section 4.6 Secretary. The Secretary shall issue or cause to be issued
all authorized notices for, and shall keep, or cause to be kept, minutes of all
meetings of the stockholders and the Board. The Secretary shall have charge of
the corporate books and shall perform such other
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duties as the Board may from time to time prescribe.
Section 4.7 Delegation of Authority. The Board may from time to time
delegate the powers or duties of any officer to any other officers or agents,
notwithstanding any provision hereof.
Section 4.8 Removal. Any officer of the Corporation may be removed at
any time, with or without cause, by the Board.
Section 4.9 Action with Respect to Securities of Other Corporations.
Unless otherwise directed by the Board, the Chief Executive Officer shall have
power to vote and otherwise act on behalf of the Corporation, in person or by
proxy, at any meeting of stockholders of or with respect to any action of
stockholders of any other corporation in which the Corporation may hold
securities and otherwise to exercise any and all rights and powers which the
Corporation may possess by reason of its ownership of securities in such other
corporation.
ARTICLE V - STOCK
Section 5.1 Certificates of Stock. Each stockholder shall be entitled
to a certificate signed by, or in the name of the Corporation by the Chairman,
the Chief Executive Officer, the President or a Vice President, and by the
Secretary or an Assistant Secretary, certifying the number of shares owned by
such stockholder. Any or all of the signatures on the certificate may be
facsimile.
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Section 5.2 Transfers of Stock. Transfers of stock shall be made only
upon the transfer books of the Corporation kept at an office of the Corporation
or by transfer agents designated to transfer shares of the stock of the
Corporation. Except where a certificate is issued in accordance with Section 5.4
of these By-laws, an outstanding certificate for the number of shares involved
shall be surrendered for cancellation before a new certificate is issued
therefore.
Section 5.3 Record Date. The Board may fix a record date, which shall
not be more than 60 nor less than ten days before the date of any meeting of
stockholders, nor more than 60 days prior to the time for the other action
hereinafter described, as of which there shall be determined the stockholders
who are entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof; to receive payment of any dividend or other distribution or
allotment of any rights; or to exercise any rights with respect to any change,
conversion or exchange of stock or with respect to any other lawful action.
Section 5.4 Lost, Stolen or Destroyed Certificates. In the event of the
loss, theft or destruction of any certificate of stock, another may be issued in
its place pursuant to such regulations as the Board may establish concerning
proof of such loss, theft or destruction and concerning the giving of a
satisfactory bond or bonds of indemnity.
Section 5.5 Regulations. The issue, transfer, conversion and
registration of certificates of stock shall be governed by such other
regulations as the Board may establish.
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ARTICLE VI - NOTICES
Section 6.1 Notices. Except as otherwise specifically provided herein
or required by law, all notices required to be given to any stockholder,
director, officer, employee or agent shall be in writing and may in every
instance be effectively given by hand delivery to the recipient thereof, by
depositing such notice in the mails, postage paid, or by sending such notice by
prepaid telegram, mailgram, telex, overnight express courier or facsimile. Any
such notice shall be addressed to such stockholder, director, officer, employee
or agent at his or her last known address as the same appears on the books of
the Corporation. The notice shall be deemed given (a) in the case of hand
delivery, when received by the person to whom notice is to be given or by any
person accepting such notice on behalf of such person, (b) in the case of
delivery by mail, upon deposit in the mail, (c) in the case of delivery by
overnight express courier, when dispatched, and (d) in the case of delivery via
telegram, telex, mailgram or facsimile, when dispatched. Without limiting the
manner by which notice otherwise may be given effectively to stockholders, any
notice to stockholders given by the Corporation under any provision of the DGCL,
the Certificate of Incorporation or these By-laws shall be effective if given by
a form of electronic transmission consented to by the stockholder to whom the
notice is given. Any such consent shall be revocable by the stockholder by
written notice to the Corporation. Any such consent shall be deemed revoked if
(i) the Corporation is unable to deliver by electronic transmission two
consecutive notices given by the Corporation in accordance with such consent and
(ii) such inability becomes known to the Secretary or an Assistant Secretary of
the Corporation or to the transfer agent, or other person responsible for the
giving of notice; provided, however, the inadvertent failure to treat such
inability as a revocation shall not invalidate any meeting or other action.
Notice given pursuant to this Section 6.1 shall be deemed given: (1) if by
facsimile telecommunication, when directed to a number at which the stockholder
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has consented to receive notice; (2) if by electronic mail, when directed to an
electronic mail address at which the stockholder has consented to receive
notice; (3) if by a posting on an electronic network together with separate
notice to the stockholder of such specific posting, upon the later of (A) such
posting and (B) the giving of such separate notice; and (4) if by any other form
of electronic transmission, when directed to the stockholder. An affidavit of
the Secretary or an Assistant Secretary or of the transfer agent or other agent
of the Corporation that the notice has been given in writing or by a form of
electronic transmission shall, in the absence of fraud, be prima facie evidence
of the facts stated herein.
Section 6.2 Waivers. A written waiver of any notice, signed by the
person entitled to notice, or waiver by electronic transmission by such person,
whether before or after the time of the event for which notice is to be given,
shall be deemed equivalent to the notice required to such person. Neither the
business nor the purpose of any meeting need be specified in such a waiver.
ARTICLE VII - MISCELLANEOUS
Section 7.1 Facsimile Signatures. In addition to the provisions for use
of facsimile signatures elsewhere specifically authorized in these By-laws,
facsimile signatures of any officer or officers of the Corporation may be used
whenever and as authorized by the Board or a committee thereof.
Section 7.2 Corporate Seal. The Board may provide a suitable seal,
containing the name of the Corporation, which seal shall be in the charge of the
Secretary. If and when so directed by
45
the Board or a committee thereof, duplicates of the seal may be kept and used by
an Assistant Secretary.
Section 7.3 Reliance upon Books, Reports and Records. Each director,
each member of any committee designated by the Board, and each officer of the
Corporation shall, in the performance of his or her duties, be fully protected
in relying in good faith upon the books of account or other records of the
Corporation, including reports made to the Corporation by any of its officers,
by an independent certified public accountant, or by an appraiser selected with
reasonable care.
Section 7.4 Fiscal Year. The fiscal year of the Corporation shall be as
fixed by the Board.
Section 7.5 Time Periods. In applying any provision of these By-laws
which requires that an act be done or not done a specified number of days prior
to an event or that an act be done during a period of a specified number of days
prior to an event, calendar days shall be used, the day of the doing of the act
shall be excluded, and the day of the event shall be included.
ARTICLE VIII - INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 8.1 Right to Indemnification. Each person who was or is made a
party or is threatened to be made a party to or is involved in any action, suit,
or proceeding whether civil, criminal, administrative, or investigative (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
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Corporation or is or was serving at the request of the Corporation as a director
or officer of another corporation or as its representative in a partnership,
joint venture, trust, or other enterprise, including service with respect to
employee benefit plans, whether the basis of such Proceeding is alleged action
in an official capacity as a director, officer, representative or in any other
capacity while serving as a director, officer, or representative, shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by the DGCL, as the same exists or may hereafter be amended (but, in
the case of any such amendment, only to the extent that such amendment permits
the Corporation to provide broader indemnification rights than said law
permitted the Corporation to provide prior to such amendment), against all
expenses, liability and loss (including attorneys' fees, judgments, fines,
excise taxes under the Employee Retirement Income Security Act or penalties, and
amounts paid or to be paid in settlement) reasonably incurred or suffered by
such person in connection therewith and such indemnification shall continue as
to a person who has ceased to be a director, officer or representative and shall
inure to the benefit of the indemnitee's heirs, executors and administrators;
provided, however, that, except as provided in Section 8.2 with respect to
Proceedings to enforce rights to indemnification, the Corporation shall
indemnify any such person seeking indemnity in connection with a proceeding (or
part thereof) initiated by such person only if such Proceeding (or part thereof)
was authorized by the Board. Such rights shall be contract rights and shall
include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition; provided,
however, that, if the DGCL requires, the payment of such expenses incurred by a
director or officer in his or her capacity as a director or officer (and not in
any other capacity in which service was or is rendered by such person while a
director or officer, including, without limitation, service to an employee
benefit plan) in advance
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of the final disposition of such 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 advanced if it should ultimately be determined by final
judicial decision from which there is no further right to appeal that such
director or officer is not entitled to be indemnified under this Section 8.1 or
otherwise.
Section 8.2 Right of Claimant to Bring Suit. If a claim under Section
8.1 is not paid in full by the Corporation within 60 days after a written claim
has been received by the Corporation, except in the case of a claim for an
advancement of expenses in which case the applicable period shall be 20 days,
the claimant may at any time thereafter bring suit against the Corporation to
recover the unpaid amount of the claim and, if successful in whole or in part in
any such suit, or in a suit brought by the Corporation against the claimant to
recover an advancement of expenses pursuant to the terms of an undertaking
referred to in Section 8.1 hereof, the claimant shall be entitled to be paid
also the expense of prosecuting or defending such claim. In any suit brought by
the claimant to enforce a right to indemnification hereunder, and in any suit by
the Corporation to recover an advancement of expenses pursuant to the terms of
an undertaking, the Corporation shall be entitled to recover any advanced
expenses upon a final adjudication that the claimant has not met the standards
of conduct that make it permissible under the DGCL for the Corporation to
indemnify the claimant for the amount claimed, but the burden of providing such
defense shall be on the Corporation. Neither the failure of the Corporation
(including the Board, independent legal counsel, or its stockholders) to have
made a determination prior to 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 DGCL, nor an actual
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determination by the Corporation (including the Board, independent legal
counsel, or its stockholders) that the claimant had not met such applicable
standard of conduct, shall be a defense to the action or create a presumption
that the claimant had not met the applicable standard of conduct.
Section 8.3 Non-Exclusivity of Rights. The rights conferred on any
person by Sections 8.1 and 8.2 shall not be exclusive of any other right that
such person may have or hereafter acquire under any statute, provision of the
Corporation's Certificate of Incorporation, these By-laws, any agreement, vote
of stockholders or disinterested directors, or otherwise.
Section 8.4 Insurance. The Corporation may maintain insurance, at its
expense, to protect itself and any such director, officer, employee or agent of
the Corporation or another corporation, partnership, joint venture, trust or
other enterprise against any such 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 DGCL.
Section 8.5 Continuance. Any repeal or modification of the foregoing
sections of this Article VIII by the stockholders of the Corporation shall not
adversely affect any right or protection of an officer, director or
representative of the Corporation existing at the time of such repeal or
modification.
ARTICLE IX - AMENDMENTS
These By-laws may be altered, amended, rescinded or repealed by either
by (a) a majority
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of the authorized number of directors and, if one or more interested
stockholders (as defined in Section 203 of the DGCL) exists, by a majority of
the directors who are Continuing Directors (as defined below) or (b) the
affirmative vote of the holders of not less than sixty-six and two-thirds
percent of the voting power of the Corporation's capital stock and, if such
alteration, amendment, rescission of repeal is proposed by or on behalf of an
interested stockholder or director affiliated with an interested stockholder, by
a majority of the disinterested shares. As used herein, a "Continuing Director"
means a director of the Corporation who (i) was a member of the Board as of
September 20, 1993, or (ii) is a beneficial owner, or an affiliate of such
beneficial owner, of less than 20 percent of the Common Stock of the Corporation
and who became a director of the Corporation subsequent to September 20, 1993,
and whose initial election or initial nomination for election was approved by a
majority of the Continuing Directors then on the Board.