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EXHIBIT 3.2
AMENDED AND RESTATED
BYLAWS
OF
LAMAR ADVERTISING COMPANY
Adopted by the Board of Directors on July 24, 1996
ARTICLE I
STOCKHOLDERS
SECTION 1. Place of Meetings. All meetings of stockholders
shall be held at the principal office of the corporation or at such other place
as may be named in the notice.
SECTION 2. Annual Meeting. The annual meeting of
stockholders for the election of directors and the transaction of such other
business as may properly come before the meeting shall be held on such date and
at such hour and place as the directors or an officer designated by the
directors may determine. If the annual meeting is not held on the date
designated therefor, the directors shall cause the meeting to be held as soon
thereafter as convenient.
SECTION 3. Special Meetings. Special meetings of the
stockholders may be called at any time by the chief executive officer or a
majority of the Board of Directors.
SECTION 4. Notice of Meetings. Except where some other
notice is required by law, written notice of each meeting of stockholders,
stating the place, date and hour thereof and the purposes for which the meeting
is called, shall be given by the Secretary under the direction of the Board of
Directors or the chief executive officer, not less than ten nor more than sixty
days before the date fixed for such meeting, to each stockholder of record
entitled to vote at such meeting. Notice shall be given personally to each
stockholder or left at his or her residence or usual place of business or
mailed postage prepaid and addressed to the stockholder at his or her address
as it appears upon the records of the corporation. In case of the death,
absence, incapacity or refusal of the Secretary, such notice may be given by a
person designated either byP the Secretary or by the person or persons calling
the meeting or by the Board of Directors. A waiver of such notice in writing,
signed by the person or persons entitled to said notice, whether before or
after the time stated therein, shall be deemed equivalent to such notice.
Attendance of a person at a meeting of stockholders shall constitute a waiver
of notice of such meeting, except when the stockholder 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. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the stockholders need be specified in any written
waiver of notice. Except as required by statute, notice of any adjourned
meeting of the stockholders shall not be required.
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SECTION 5. Record Date. The Board of Directors may fix
in advance a record date for the determination of the stockholders entitled to
notice of or to vote at any meeting of stockholders, or entitled to receive
payment of any dividend or other distribution or allotment of any rights, or
entitled to exercise any rights in respect of any change, conversion or
exchange of stock, or for the purpose of any other lawful action. Such record
date shall not be more than 60 nor less than 10 days before the date of such
meeting, nor more than 60 days before any other action to which such record
date relates. If no record date is fixed, the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders
shall be at the close of business on the day before the day on which notice is
given, or, if notice is waived, at the close of business on the day before the
day on which the meeting is held, and the record date for determining
stockholders for any other purpose shall be at the close of business on the day
on which the Board of Directors adopts the resolution relating to such purpose.
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;
provided, however, that the Board of Directors may fix a new record date for
the adjourned meeting.
SECTION 6. Nomination of Directors. Only persons who are
nominated in accordance with the following procedures shall be eligible for
election as directors at any annual or special meeting of stockholders.
Nominations of persons for election as directors may be made only by or at the
direction of the Board of Directors, or by any stockholder entitled to vote for
the election of directors at the meeting in compliance with the notice
procedures set forth in this Section 6. Such nominations, other than those
made by or at the direction of the Board of Directors, shall be made pursuant
to timely notice in writing to the Chairman of the Board, if any, the President
or the Secretary. To be timely, a stockholder's notice shall be delivered to
or mailed and received at the principal executive offices of the corporation
not less than 45 days before the meeting; provided, however, that if less than
60 days' notice or prior public disclosure of the date of the meeting is given
or made to stockholders, notice by the stockholder to be timely must be so
received not later than the close of business on the 15th day following the day
on which such notice of the date of the meeting was mailed or such public
disclosure was made. Such stockholder's notice shall set forth (a) as to each
person whom the stockholder proposes to nominate for election or re-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 and number of shares of capital stock of the corporation that are
beneficially owned by the person and (iv) any other information relating to the
person that is required to be disclosed in solicitations for proxies for
election of directors pursuant to Regulation 14A under the Securities Exchange
Act of 1934, as amended, or any successor provision thereto; and (b) as to the
stockholder giving the notice, (i) the name and record address of such
stockholder and (ii) the class and number of shares of capital stock of the
corporation that are beneficially owned by such stockholder.
The chairman of the meeting shall, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with the
foregoing procedure, and if the chairman should so determine, he or she shall
so declare to the meeting and the defective nomination shall be disregarded.
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SECTION 7. Advance Notice of Business at Annual Meetings. At
any annual meeting of the stockholders, only such business shall be conducted
as shall have been properly brought before the meeting. To be brought properly
before an annual meeting, business must be either (a) specified in the notice
of meeting (or any supplement thereto) given by or at the direction of the
chief executive officer or the Board of Directors, (b) otherwise properly
brought before the meeting by or at the direction of the Board of Directors, or
(c) properly brought before the meeting by a stockholder. In addition to any
other applicable requirements, for business to be brought properly before an
annual meeting by a stockholder, the stockholder must have given timely notice
thereof in writing to the Chairman of the Board, if any, the President or the
Secretary. To be timely, a stockholder's notice must be delivered to or mailed
and received at the principal executive offices of the corporation not less
than 45 days before the meeting; provided, however, that if less than 60 days'
notice or prior public disclosure of the date of the meeting is given or made
to stockholders, notice by the stockholder to be timely must be so received not
later than the close of business on the 15th day following the day on which
such notice of the date of the annual meeting was mailed or such public
disclosure was made. A stockholder's notice shall set forth as to each matter
the stockholder proposes to bring before the annual meeting (i) 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, (ii) the name
and record address of the stockholder proposing such business, (iii) the class
and number of shares of the corporation that are beneficially owned by the
stockholder and (iv) any material interest of the stockholder in such business.
Notwithstanding anything in these by-laws to the contrary, no business
shall be conducted at the annual meeting except in accordance with the
procedures set forth in this Section 7, provided, however, that nothing in this
Section 7 shall be deemed to preclude discussion by any stockholder of any
business properly brought before the annual meeting in accordance with said
procedure.
The chairman of an annual meeting shall, if the facts warrant,
determine and declare to the meeting that business was not properly brought
before the meeting in accordance with the foregoing procedure, and if the
chairman should so determine, he or she shall so declare to the meeting and any
such business not properly brought before the meeting shall not be transacted.
SECTION 8. Voting List. The officer who has charge of the
stock ledger of the corporation shall make or have made, at least 10 days
before every meeting of stockholders, a complete list of the stockholders,
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
before the meeting, either at a place within the city where the meeting is to
be held, which place shall be specified in the notice of the meeting, 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. The
stock ledger shall be the only
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evidence as to who are the stockholders entitled to examine the stock ledger,
the list required by this section or the books of the corporation, or to vote
at any meeting of stockholders.
SECTION 9. Quorum of Stockholders. At any meeting of
the stockholders, the holders of a majority in interest of all stock issued and
outstanding and entitled to vote upon a question to be considered at the
meeting, present in person or represented by proxy, shall constitute a quorum
for the consideration of such question, but in the absence of a quorum a
smaller group may adjourn any meeting from time to time. When a quorum is
present at any meeting, a majority of the votes properly cast shall, except
where a different vote is required by law, by the Certificate of Incorporation
or by these by-laws, decide any question brought before such meeting. Any
election by stockholders shall be determined by a plurality of the vote cast by
the stockholders entitled to vote at the election.
SECTION 10. Proxies and Voting. Unless otherwise provided in
the Certificate of Incorporation, each stockholder shall at every meeting of
the stockholders be entitled to one vote in person or by proxy for each share
of the capital stock held of record by such stockholder, but no proxy shall be
voted or acted upon after three years from its date, unless said proxy provides
for a longer period. Persons holding stock in a fiduciary capacity shall be
entitled to vote the shares so held, and persons whose stock is pledged shall
be entitled to vote unless in the transfer by the pledgor on the books of the
corporation the pledgee shall have been expressly empowered to vote thereon, in
which case only the pledgee or the pledgee's proxy may represent said stock and
vote thereon. Shares of the capital stock of the corporation belonging to the
corporation or to another corporation, a majority of whose shares entitled to
vote in the election of directors is owned by the corporation, shall neither be
entitled to vote nor be counted for quorum purposes.
SECTION 11. Conduct of Meeting. Meetings of the stockholders
shall be presided over by one of the following officers in the order specified
and if present and acting: the Chairman of the Board, if any, the
Vice-Chairman of the Board, if any, the President, a Vice-President (and, in
the event there be more than one person in any such office, in the order of
their seniority), or, if none of the foregoing is in office and present and
acting, a chairman designated by the Board of Directors or, in the absence of
such designation, a chairman chosen by the stockholders at the meeting. The
Secretary of the corporation, if present, or an Assistant Secretary, shall act
as secretary of every meeting, but if neither the Secretary nor an Assistant
Secretary is present the chairman of the meeting shall appoint a secretary of
the meeting.
The Board of Directors may adopt such rules, regulations and
procedures for the conduct of the meeting of stockholders as it shall deem
appropriate. Except to the extent inconsistent with such rules and regulations
as adopted by the Board of Directors, the chairman of the meeting shall have
the right and authority to prescribe such rules, regulations and procedures and
to do all such acts as, in the judgement of such chairman, are appropriate for
the proper conduct of the meeting. Such rules, regulations or procedures,
whether adopted by the Board of Directors or prescribed by the chairman of the
meeting, may include, without limitation, (i) the establishment of an agenda or
order of business for the meeting, (ii) rules and procedures
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for maintaining order at the meeting and the safety of those present, (iii)
limitations on attendance at or participation in the meeting to stockholders of
record of the corporation, their duly authorized and constituted proxies or
such other persons as the chairman of the meeting shall determine, (iv)
restrictions on entry to the meeting after the time fixed for the commencement
thereof, and (v) limitations on the time allotted to questions or comments by
participants. Unless and to the extent determined by the Board of Directors or
the chairman of the meeting, meetings of stockholders shall not be required to
be held in accordance with the rules of parliamentary procedure.
SECTION 12. Action Without Meeting. Unless otherwise
provided in the Certificate of Incorporation, any action required or permitted
to be taken at any annual or special meeting of stockholders may be taken
without a meeting, without prior notice and without a vote, if a consent in
writing, setting forth the action so taken, is signed by the holders or by
proxy for the holders of outstanding stock having not less than the minimum
number of votes that would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote on such action were present and
voted. Prompt notice of the taking of corporate action without a meeting by
less than unanimous written consent shall be given to those stockholders who
have not consented in writing.
ARTICLE II
DIRECTORS
SECTION 1. General Powers. The business and affairs of
the corporation shall be managed by or under the direction of a Board of
Directors, who may exercise all of the powers of the corporation that are not
by law required to be exercised by the stockholders. In the event of a vacancy
in the Board of Directors, the remaining directors, except as otherwise
provided by law, may exercise the powers of the full Board until the vacancy is
filled.
SECTION 2. Number; Election; Tenure and Qualification.
Subject to any restrictions contained in the Certificate of Incorporation, the
number of directors that shall constitute the whole Board shall be fixed by
resolution of the Board of Directors but in no event shall be less than one.
The directors shall be elected in the manner provided in the Certificate of
Incorporation, by such stockholders as have the right to vote thereon. The
number of directors may be increased or decreased by action of the Board of
Directors. Directors need not be stockholders of the corporation.
SECTION 3. Enlargement of the Board. Subject to any
restrictions contained in the Certificate of Incorporation, the number of the
Board of Directors may be increased at any time, such increase to be effective
immediately unless otherwise specified in the resolution, by vote of a majority
of the directors then in office.
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SECTION 4. Vacancies. Unless and until filled by the
stockholders and except as otherwise determined by the Board of Directors in
establishing a series of Preferred Stock as to directors elected by the holders
of such series, any vacancy in the Board of Directors, however occurring,
including a vacancy resulting from an enlargement of the Board and an unfilled
vacancy resulting from the removal of any director, may be filled by vote of a
majority of the directors then in office although less than a quorum, or by the
sole remaining director. Each director so chosen to fill a vacancy shall serve
for a term determined in the manner provided in the Certificate of
Incorporation. When one or more directors shall resign from the Board,
effective at a future date, a majority of the directors then in office,
including those who have so resigned, shall have the power to fill such vacancy
or vacancies, the vote thereon to take effect when such resignation or
resignations shall become effective. If at any time there are no directors in
office, then an election of directors may be held in accordance with the
General Corporation Law of the State of Delaware.
SECTION 5. Resignation. Any director may resign at any time
upon written notice to the corporation. Such resignation shall take effect at
the time specified therein, or if no time is specified, at the time of its
receipt by the Chairman of the Board, if any, the President or the Secretary.
SECTION 6. Removal. Directors may be removed from office
only as provided in the Certificate of Incorporation. The vacancy or vacancies
created by the removal of a director may be filled by the stockholders at the
meeting held for the purpose of removal or, if not so filled, by the directors
in the manner provided in Section 4 of this Article II.
SECTION 7. Committees. The Board of Directors may, by
resolution or resolutions passed by a majority of the whole Board of Directors,
designate one or more committees, each committee to consist of one or more
directors of the corporation. The Board of Directors may designate one or more
directors as alternate members of any committee to replace any absent or
disqualified member at any meeting of the committee. In the absence or
disqualification of any member of any such committee, the member or members
thereof present at any meeting and not disqualified from voting, whether or not
such member or members constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of such
absent or disqualified member. The Board of Directors shall have the power to
change the members of any such committee at any time, to fill vacancies therein
and to discharge any such committee, either with or without cause, at any time.
Any such committee, to the extent permitted by law and to the extent
provided in the resolution of the Board of Directors or in these by-laws, 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, and may
authorize the seal of the corporation to be affixed to all papers that may
require it.
A majority of all the members of any such committee may fix its rules
of procedure, determine its action and fix the time and place, whether within
or without the State of Delaware,
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of its meetings and specify what notice thereof, if any, shall be given, unless
the Board of Directors shall otherwise by resolution provide. Each committee
shall keep regular minutes of its meetings and make such reports as the Board
of Directors may from time to time request.
SECTION 8. Meetings of the Board of Directors. Regular
meetings of the Board of Directors may be held without call or formal notice at
such places either within or without the State of Delaware and at such times as
the Board may by vote from time to time determine. A regular meeting of the
Board of Directors may be held without call or formal notice immediately after
and at the same place as the annual meeting of the stockholders, or any special
meeting of the stockholders at which a Board of Directors is elected.
Special meetings of the Board of Directors may be held at any place
either within or without the State of Delaware at any time when called by the
Chairman of the Board, if any, the President, the Secretary or two or more
directors. Reasonable notice of the time and place of a special meeting shall
be given to each director unless such notice is waived by attendance or by
written waiver in the manner provided in these by-laws for waiver of notice by
stockholders. Notice may be given by, or by a person designated by, the
Secretary, the person or persons calling the meeting, or the Board of
Directors. No notice of any adjourned meeting of the Board of Directors shall
be required. In any case it shall be deemed sufficient notice to a director to
send notice by mail at least seventy-two hours, or by telegram or fax at least
forty-eight hours, before the meeting, addressed to such director at his or her
usual or last known business or home address.
Directors or members of any committee may participate in a meeting of
the Board of Directors or of such committee by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and participation by such means shall
constitute presence in person at such meeting.
SECTION 9. Quorum and Voting. A majority of the total
number of directors shall constitute a quorum, except that when a vacancy or
vacancies exist in the Board, a majority of the directors then in office (but
not less than one-third of the total number of the directors) shall constitute
a quorum. A majority of the directors present, whether or not a quorum is
present, may adjourn any meeting from time to time. The vote of a majority of
the directors present at any meeting at which a quorum is present shall be the
act of the Board of Directors, except where a different vote is required by
law, by the Certificate of Incorporation or by these by-laws.
SECTION 10. Compensation. The Board of Directors may fix fees
for their services and for their membership on committees, and expenses of
attendance may be allowed for attendance at each meeting. Nothing herein
contained shall be construed to preclude any director from serving the
corporation in any other capacity, as an officer, agent or otherwise, and
receiving compensation therefor.
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SECTION 11. Action Without Meeting. Any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting and without notice if a
written consent thereto is signed by all members of the 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 of such committee.
ARTICLE III
OFFICERS
SECTION 1. Titles. The officers of the corporation
shall consist of a President, a Secretary, a Treasurer and such other officers
with such other titles as the Board of Directors shall determine, who may
include without limitation a Chairman of the Board, a Vice-Chairman of the
Board and one or more Vice-Presidents, Assistant Treasurers or Assistant
Secretaries.
SECTION 2. Election and Term of Office. The officers of
the corporation shall be elected annually by the Board of Directors at its
first meeting following the annual meeting of the stockholders. Each officer
shall hold office until his or her successor is elected and qualified, unless a
different term is specified in the vote electing such officer, or until his or
her earlier death, resignation or removal.
SECTION 3. Qualification. Unless otherwise provided by
resolution of the Board of Directors, no officer, other than the Chairman or
Vice-Chairman of the Board, need be a director. No officer need be a
stockholder. Any number of offices may be held by the same person, as the
directors shall determine.
SECTION 4. Removal. Any officer may be removed, with or
without cause, at any time, by resolution adopted by the Board of Directors.
SECTION 5. Resignation. Any officer may resign by
delivering a written resignation to the corporation at its principal office or
to the Chairman of the Board, if any, the President or the Secretary. Such
resignation shall be effective upon receipt or at such later time as may be
specified therein.
SECTION 6. Vacancies. The Board of Directors may at any
time fill any vacancy occurring in any office for the unexpired portion of the
term and may leave unfilled for such period as it may determine any office
other than those of President, Treasurer and Secretary.
SECTION 7. Powers and Duties. The officers of the
corporation shall have such powers and perform such duties as are specified
herein and as may be conferred upon or assigned to them by the Board of
Directors and shall have such additional powers and duties as
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are incident to their office except to the extent that resolutions of the Board
of Directors are inconsistent therewith.
SECTION 8. President and Vice-Presidents. Except to the
extent that such duties are assigned by the Board of Directors to the Chairman
of the Board, or in the absence of the Chairman or in the event of his or her
inability or refusal to act, the President shall be the chief executive officer
of the corporation and shall have general and active management of the business
of the corporation and general supervision of its officers, agents and
employees, and shall see that all orders and resolutions of the Board of
Directors are carried into effect. The President shall preside at each meeting
of the stockholders and the Board of Directors unless a Chairman or
Vice-Chairman of the Board is elected by the Board and is present at such
meeting.
The Board of Directors may assign to any Vice-President the title of
Executive Vice-President, Senior Vice-President or any other title selected by
the Board of Directors. In the absence of the President or in the event of his
or her inability or refusal to act, the duties of the President shall be
performed by the Executive Vice-President, if any, Senior Vice President, if
any, or Vice President, if any, in that order (and, in the event there be more
than one person in any such office, in the order of their seniority), and when
so acting, such officer shall have all the powers of and be subject to all the
restrictions upon the President.
SECTION 9. Secretary and Assistant Secretaries. The
Secretary shall attend all meetings of the Board of Directors and of the
stockholders and record all the proceedings of such meetings in a book to be
kept for that purpose, shall give, or cause to be given, notice of all meetings
of the stockholders and special meetings of the Board of Directors, shall
maintain a stock ledger and prepare lists of stockholders and their addresses
as required and shall have custody of the corporate seal, which the Secretary
or any Assistant Secretary shall have authority to affix to any instrument
requiring it and attest by any of their signatures. The Board of Directors may
give general authority to any other officer to affix and attest the seal of the
corporation.
Any Assistant Secretary may, 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.
SECTION 10. Treasurer and Assistant Treasurers. The
Treasurer shall have the custody of the corporate funds and securities, shall
keep full and accurate accounts of receipts and disbursements in books
belonging to the corporation and shall deposit all moneys and other valuable
effects in the name and to the credit of the corporation in such depositories
as may be designated by or pursuant to resolution of the Board of Directors.
The Treasurer shall disburse the funds of the corporation as may be ordered by
the Board of Directors, the Chairman of the Board, if any, or the President,
taking proper vouchers for such disbursements, and shall render to the Chairman
of the Board, the President and the Board of Directors, at its regular meetings
or whenever they may require it, an account of all transactions and of the
financial condition of the corporation.
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Any Assistant Treasurer may, in the absence of the Treasurer or in the
event of his or her inability or refusal to act, perform the duties and
exercise the powers of the Treasurer.
SECTION 11. Bonded Officers. The Board of Directors may
require any officer to give the corporation a bond in such sum and with such
surety or sureties as shall be satisfactory to the Board of Directors upon such
terms and conditions as the Board of Directors may specify, including without
limitation a bond for the faithful performance of the duties of such officer
and for the restoration to the corporation of all property in his or her
possession or control belonging to the corporation.
SECTION 12. Salaries. Officers of the corporation shall be
entitled to such salaries, compensation or reimbursement as shall be fixed or
allowed from time to time by the Board of Directors or any committee thereof
appointed for the purpose.
ARTICLE IV
STOCK
SECTION 1. Certificates of Stock. One or more stock
certificates, signed by the Chairman or Vice-Chairman of the Board of Directors
or by the President or a Vice-President and by the Treasurer or an Assistant
Treasurer or the Secretary or an Assistant Secretary, shall be issued to each
stockholder certifying the number of shares owned by the stockholder in the
corporation. Any or all signatures on any such certificate may be facsimiles.
In case any officer, transfer agent or registrar who shall have signed or whose
facsimile signature shall have been placed upon 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 he or
she were such officer, transfer agent or registrar at the date of issue.
Each certificate for shares of stock that are subject to any
restriction on transfer pursuant to the Certificate of Incorporation, the
by-laws, applicable securities laws, or any agreement among any number of
stockholders or among such holders and the corporation shall have conspicuously
noted on the face or back of the certificate either the full text of the
restriction or a statement of the existence of such restriction.
SECTION 2. Transfers of Shares of Stock. Subject to the
restrictions, if any, stated or noted on the stock certificates, shares of
stock may be transferred on the books of the corporation by the surrender to
the corporation or its transfer agent of the certificate representing such
shares properly endorsed or accompanied by a written assignment or power of
attorney properly executed, and with such proof of authority or the
authenticity of signature as the corporation or its transfer agent may
reasonably require. The corporation shall be entitled to treat the record
holder of stock as shown on its books as the owner of such stock for all
purposes, including the payment of dividends and the right to vote with
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respect to that stock, regardless of any transfer, pledge or other disposition
of that stock, until the shares have been transferred on the books of the
corporation in accordance with the requirements of these by-laws.
SECTION 3. Lost Certificates. A new stock certificate
may be issued in the place of any certificate theretofore issued by the
corporation and alleged to have been lost, stolen, destroyed or mutilated, upon
such terms in conformity with law as the Board of Directors shall prescribe.
The directors may, in their discretion, require the owner of the lost, stolen,
destroyed or mutilated certificate, or the owner's legal representatives, to
give the corporation a bond, in such sum as they may direct, to indemnify the
corporation against any claim that may be made against it on account of the
alleged loss, theft, destruction or mutilation of any such certificate, or the
issuance of any such new certificate.
SECTION 4. Fractional Share Interests. The corporation
may, but shall not be required to, issue fractions of a share. If the
corporation does not issue fractions of a share, it shall (i) arrange for the
disposition of fractional interests by those entitled thereto, (ii) pay in cash
the fair value of fractions of a share as of the time when those entitled to
receive such fractions are determined, or (iii) issue scrip or warrants in
registered or bearer form, which shall entitle the holder to receive a
certificate for a full share upon the surrender of such scrip or warrants
aggregating a full share. A certificate for a fractional share shall, but
scrip or warrants shall not unless otherwise provided therein, entitle the
holder to exercise voting rights, to receive dividends thereon, and to
participate in any of the assets of the corporation in the event of
liquidation. The Board of Directors may cause scrip or warrants to be issued
subject to the conditions that they shall become void if not exchanged for
certificates representing full shares before a specified date, or subject to
the conditions that the shares for which scrip or warrants are exchangeable may
be sold by the corporation and the proceeds thereof distributed to the holders
of scrip or warrants, or subject to any other conditions that the Board of
Directors may impose.
SECTION 5. Dividends. Subject to the provisions of the
Certificate of Incorporation, the Board of Directors may, out of funds legally
available therefor, at any regular or special meeting, declare dividends upon
the capital stock of the corporation as and when they deem expedient.
ARTICLE V
INDEMNIFICATION AND INSURANCE
SECTION 1. Indemnification. The corporation shall, to the
fullest extent permitted by the General Corporation Law of the State of
Delaware, as amended from time to time, indemnify each person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative
or investigative, by reason of the fact that he or she is or was, or has agreed
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to become, a director or officer of the corporation, or is or was serving, or
has agreed to serve, at the request of the corporation, as a director, officer,
trustee, employee or agent of, or in a similar capacity with, another
corporation, partnership, joint venture, trust, other enterprise or employee
benefit plan, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by such person
or on his or her behalf in connection with such action, suit or proceeding and
any appeal therefrom, provided that in the case of a settlement the payment and
indemnification thereof have been approved by the corporation, which approval
shall not unreasonably be withheld, or by a court of competent jurisdiction.
Such indemnification shall, subject to the conditions imposed by law, include
payment by the corporation of expenses in defending an action or proceeding in
advance of the final disposition of such action or proceeding upon receipt of
any undertaking by the person indemnified to repay such payment if it is
ultimately determined that such person is not entitled to indemnification under
this Section, which undertaking may be accepted without reference to the
financial ability of such person to make such repayments.
The corporation shall not indemnify any such person seeking
indemnification in connection with a proceeding (or part thereof) initiated by
such person unless the initiation thereof was approved by the Board of
Directors of the corporation.
The indemnification rights provided in this Section (i) shall not be
deemed exclusive of any other rights to which those indemnified may be entitled
under any law, agreement or vote of stockholders or disinterested directors or
otherwise, (ii) shall be a contract right inuring to the benefit of the
directors, officers and other persons entitled to be indemnified hereunder and
no amendment or repeal of this Section shall adversely affect any right of such
director, officer or other person existing at the time of such amendment or
repeal, and (iii) shall inure to the benefit of the heirs, executors and
administrators of such persons. Nothing contained in this Section shall affect
any rights to indemnification to which corporation employees or agents other
than directors and officers and other persons entitled to indemnification
hereunder may be entitled by contract or otherwise under law.
SECTION 2. 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, trustee, employee or
agent of another corporation, partnership, joint venture, trust, other
enterprise or employee benefit plan against any liability asserted against such
person and incurred by such person in any such capacity or arising out of such
person's status as such, whether or not the corporation would have the power to
indemnify such person against such liability under the provisions of the
General Corporation Law of the State of Delaware.
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ARTICLE VI
GENERAL PROVISIONS
SECTION 1. Fiscal Year. Except as otherwise designated
from time to time by the Board of Directors, the fiscal year of the corporation
shall begin on the first day of November and end on the last day of October.
SECTION 2. Corporate Seal. The corporate seal shall be in
such form as shall be approved by the Board of Directors. The Secretary shall
be the custodian of the seal, and a duplicate seal may be kept and used by each
Assistant Secretary and by any other officer the Board of Directors may
authorize.
SECTION 3. Certificate of Incorporation. All references in
these by-laws to the Certificate of Incorporation shall be deemed to refer to
the Certificate of Incorporation of the corporation, as in effect from time to
time.
SECTION 4. Execution of Instruments. The Chairman and Vice-
Chairman of the Board of Directors, if any, the President and the Treasurer
shall have power to execute and deliver on behalf and in the name of the
corporation any instrument requiring the signature of an officer of the
corporation, including deeds, contracts, mortgages, bonds, notes, debentures,
checks, drafts and other orders for the payment of money. In addition, the
Board of Directors, the Chairman and Vice Chairman of the Board of Directors,
if any, the President and the Treasurer may expressly delegate such powers to
any other officer or agent of the corporation.
SECTION 5. Voting of Securities. The Chairman and Vice
- -Chairman of the Board of Directors, if any, the President, the Treasurer, and
each other person authorized by the Board of Directors, each acting singly, may
waive notice of, and act as, or appoint any person or persons to act as, proxy
or attorney-in-fact for this corporation (with or without power of
substitution) at any meeting of stockholders or owners of other interests of
any other corporation or organization the securities of which may be held by
this corporation. In addition, the Board of Directors, the Chairman and Vice
Chairman of the Board of Directors, if any, the President and the Treasurer may
expressly delegate such powers to any other officer or agent of the
corporation.
SECTION 6. Evidence of Authority. A certificate by the
Secretary, an Assistant Secretary or a temporary secretary as to any action
taken by the stockholders, directors, a committee or any officer or
representative of the corporation shall, as to all persons who rely on the
certificate in good faith, be conclusive evidence of that action.
SECTION 7. Transactions with Interested Parties. No
contract or transaction between the corporation and one or more of the
directors or officers, or between the corporation and any other corporation,
partnership, association or other organization in which
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one or more of the directors or officers are directors or officers or have a
financial interest, shall be void or voidable solely for that reason or solely
because the director or officer is present at or participates in the meeting of
the Board of Directors or a committee of the Board of Directors that authorizes
the contract or transaction or solely because the vote of any such director is
counted for such purpose, if:
(1) The material facts as to the relationship or interest and as to
the contract or transaction are disclosed or are known to the Board of
Directors or such committee, and the Board or committee in good faith
authorizes the contract or transaction by the affirmative votes of a majority
of the disinterested directors, even though the disinterested directors be less
than a quorum; or
(2) The material facts as to the relationship or interest and as to
the contract or transaction are disclosed or are known to the stockholders
entitled to vote thereon, and the contract or transaction is specifically
approved in good faith by vote of the stockholders; or
(3) The contract or transaction is fair to the corporation as of the
time it is authorized, approved or ratified by the Board of Directors, a
committee of the Board of Directors or the stockholders.
Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or of a committee
that authorizes the contract or transaction.
SECTION 8. Books and Records. The books and records of the
corporation shall be kept at such places within or without the State of
Delaware as the Board of Directors may from time to time determine.
ARTICLE VII
AMENDMENTS
SECTION 1. By the Board of Directors. These by-laws may be
altered, amended or repealed or new by-laws may be adopted by the affirmative
vote of a majority of the directors present at any regular or special meeting
of the Board of Directors at which a quorum is present.
SECTION 2. By the Stockholders. These by-laws may be
altered, amended or repealed or new by-laws may be adopted by vote of the
stockholders, at any regular meeting of stockholders, or at any special meeting
of stockholders, provided notice of such alteration, amendment, repeal or
adoption of new by-laws shall have been stated in the notice of such special
meeting.
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