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EXHIBIT 3.2
CONFIDENTIAL
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AS OF JUNE 25, 1996
AMENDED AND RESTATED BYLAWS
OF
PEGASUS SYSTEMS, INC.
(A DELAWARE CORPORATION)
ARTICLE I
OFFICES AND FISCAL YEAR
SECTION 1.01. REGISTERED OFFICE. The registered office of the
Corporation shall be as stated in the Certificate of Incorporation until a
change in such office is established by resolution of the Board of Directors
and a statement of such change is filed in the manner provided by applicable
law.
SECTION 1.02. OTHER OFFICES. The Corporation may also have offices
and keep its books, documents, and records at such other places within or
without the State of Delaware as the Board of Directors may from time to time
determine or the business of the Corporation may require.
SECTION 1.03. FISCAL YEAR. The fiscal year of the Corporation shall
end on the 31st day of December in each year or on such other date as the Board
of Directors may designate by resolution.
ARTICLE II
THE STOCKHOLDERS
SECTION 2.01. TYPES OF STOCK.
(a) The Corporation's Certificate of Incorporation, as
amended (the "Certificate of Incorporation") currently authorizes two classes
of capital stock - Common Stock and Series A Preferred Stock ("Series A
Preferred"). The aggregate number of shares of Common Stock and Series A
Preferred which the Corporation has authority to issue is set forth in the
Certificate of Incorporation. Unless otherwise specified, references in these
Bylaws to the issued and outstanding shares of capital stock of the Corporation
shall mean the issued and outstanding shares of Common Stock as if all issued
and outstanding shares of Series A Preferred had been converted to Common
Stock.
(b) Except as provided herein or in the Certificate of
Incorporation, or except as may be provided by the laws of the State of
Delaware, the holders of Common Stock and Series A Preferred shall have
exclusively all rights of stockholders. Each holder of Common Stock or Series A
Preferred shall be entitled to one (1) vote per share of stock owned by such
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holder, except as otherwise provided or limited herein or in the Certificate of
Incorporation, or as otherwise provided or limited in (i) that certain Amended
and Restated Stockholders Agreement dated as of June 25, 1996 to which the
Corporation is a party (as it may be amended, the "Stockholders Agreement") and
(ii) that certain Rights Agreement dated as of June 25, 1996 to which the
Corporation is a party (as it may be amended, the "Rights Agreement"). Any
holder of stock may enter into an agreement with the Corporation whereby such
holder agrees not to vote such stock in all or certain circumstances; and in
such case such shares held by such holder as to which such an agreement applies
shall, for all purposes, not be considered to be entitled to vote on any
matters as to which such holder has agreed not to vote such shares. No person
or entity, together with all "affiliates" (as that term is defined in Rule
12b-2 under the Securities Exchange Act of 1934, as in effect as of June 1,
1995) of that person or entity, may beneficially own more than twenty-five
percent (25%) of the issued stock. The limitation in the preceding sentence
shall terminate on the earliest to occur of (x) the termination of the
Stockholders Agreement, (y) July 21, 1998 or (z) the closing of a Qualified
Public Offering. A "Qualified Public Offering" shall mean any underwritten
public offering pursuant to an effective registration statement under the
Securities Act of 1933, as amended, relating to the offering and sale of Common
Stock for the account of the Corporation to the public at a price per share
(prior to underwriter commissions and offering expenses) of not less than
$13.00 (as adjusted for stock splits, stock dividends, reclassifications and
like events) and in which the Corporation receives aggregate gross proceeds of
not less than $10,000,000.
(c) Neither the Corporation nor any other stockholder
shall have any power or authority (i) to require any stockholder to unwillingly
resell his or its stock to the Corporation or to any other person or entity, or
(ii) to force the purchase of any stockholder's stock, except in the case of
(i) or (ii) as part of a merger or sale of the Corporation approved by the
Board of Directors or as set forth herein, in the Corporation's Certificate of
Incorporation or the Stockholders Agreement.
SECTION 2.02. PLACE OF MEETING; ANNUAL MEETING. All meetings of the
stockholders of the Corporation shall be held at the principal offices of the
Corporation, or at such other place within or without the State of Delaware as
shall be designated by the Board of Directors in the notice of such meeting.
The Board of Directors may fix by resolution the date and time of the annual
meeting of the stockholders, and at said meeting the stockholders then entitled
to vote shall elect directors to serve until the next annual meeting of
stockholders and until their successors are duly nominated, qualified and
elected, and shall transact such other business as may properly be brought
before the meeting.
SECTION 2.03. SPECIAL MEETINGS. Except as otherwise provided by
applicable law, the Certificate of Incorporation, or these Bylaws, a special
meeting of the stockholders of the Corporation entitled to vote may be called
at any time only by the affirmative vote of at least two of the directors then
in office, or the President. Except for actions relating to the conduct of the
meeting under Section 2.05 of these Bylaws or the appointment of judges under
Section 2.10 of these Bylaws, at a special meeting of the stockholders, no
business shall be transacted and no corporate action shall be taken other than
that stated in the notice of the meeting unless all of the stockholders of
record entitled to vote for or against such an action are present in person or
by proxy in which case any and all business may be transacted at the meeting
even if the meeting is held without notice.
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SECTION 2.04. NOTICE OF MEETINGS. Unless otherwise provided by
applicable law, the Certificate of Incorporation, or these Bylaws, written
notice of the place, date, and hour of every meeting of the stockholders,
whether annual or special, shall be given to each stockholder of record
entitled to vote at the meeting at the address of such stockholder as it
appears on the records of the Corporation, not less than ten (10) nor more than
sixty (60) calendar days before the date of the meeting. Every notice of a
special meeting shall state the purpose or purposes thereof.
SECTION 2.05 QUORUM. MANNER OF ACTING AND ADJOURNMENT. (a) Except
as otherwise provided by the Certificate of Incorporation or these Bylaws, the
record holders of at least two-thirds (2/3) of the shares of capital stock of
the Corporation issued and outstanding and entitled to vote thereat, must be
present in person or represented by proxy to constitute a quorum at any annual
or special meeting of the stockholders. Whether or not a quorum is present or
represented at any meeting of the stockholders, the record holders of
two-thirds (2/3) of the shares of capital stock present or so represented shall
have the power to adjourn the meeting from time to time. When a meeting is
adjourned to another time or place, no notice need be given of the adjourned
meeting if the time and place thereof are announced at the meeting at which the
adjournment is taken. At any adjourned meeting at which a quorum shall be
present or represented, any business may be transacted which might have been
transacted at the original meeting. If an adjournment is for more than thirty
(30) calendar days, or if after an adjournment a new record date is fixed for
the adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the adjourned meeting. Except as
otherwise provided by the Certificate of Incorporation or these Bylaws, the
affirmative vote of the record holders of two-thirds (2/3) of the shares of
capital stock of the Corporation present in person or represented by proxy and
entitled to vote on the subject matter at a meeting duly called and held with
the necessary quorum, shall be the act of the stockholders at any annual or
special meeting of stockholders. At any meeting at which amendment of the
Certificate of Incorporation, or a merger, consolidation, sale of all or
substantially all the assets, dissolution or liquidation of the Corporation, or
any other matter requiring under applicable law a vote different than that set
forth in the immediately preceding sentence for the taking of such action, is
to be voted upon, then, in addition to the vote required under applicable law
at the meeting in question, such matter or action, in order to be approved,
must also be approved at such meeting by the affirmative vote of the record
holders of at least two-thirds (2/3) of the shares of stock present in person
or represented by proxy and entitled to vote thereon at such a meeting at which
the record holders of at least two-thirds (2/3) of the shares of stock then
issued and outstanding and entitled to vote thereat are present in person or by
proxy. Except as otherwise required by applicable law or provided by the
Certificate of Incorporation or these Bylaws, the stockholders present in
person or by proxy at a meeting duly called and held can continue to do
business with respect to any matters properly brought before the meeting, until
adjournment, notwithstanding withdrawal of enough stockholders to leave less
than a quorum.
(b) Shares of its own capital stock belonging to the Corporation,
or to another corporation if a majority of the shares entitled to vote in the
election of directors of such other corporation is held directly or indirectly
by the Corporation, shall not be entitled to vote and shall not be counted for
quorum purposes.
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(c) Notwithstanding the requirements of paragraph (a) of this
Section 2.05, the following corporate actions shall require the affirmative
vote of the record holders of two-thirds (2/3) or more of the issued and
outstanding shares of capital stock of the Corporation: (i) the transfer and/or
assumption of all or substantially all of the assets or liabilities of, or the
dissolution of, the Corporation, The Hotel Industry Switch Company, and/or The
Hotel Clearing Corporation; (ii) any material acquisition, disposition,
consolidation, or merger effected by the Corporation; (iii) the execution of
any contract by the Corporation involving a liability or obligation to the
Corporation in excess of five million dollars ($5,000,000.00) other than in
connection with a public offering of securities; (iv) the incurrence of debt in
excess of one million dollars ($1,000,000.00) other than in connection with a
public offering of securities; and (vii) the liquidation, dissolution or
declaration of bankruptcy by the Corporation. This Subsection (c) shall
terminate upon a Qualified Public Offering of the Corporation's stock.
SECTION 2.06. ORGANIZATION. At every meeting of the stockholders,
the Chairman of the Board, or in the case of a vacancy in the office or absence
of the Chairman of the Board, one of the following persons present in the order
stated: the Vice Chairmen in their order of rank, the President, the
Vice-Presidents in their order of rank, a chairman designated by the Board of
Directors, or a chairman chosen by the stockholders entitled to cast two-thirds
(2/3) of the votes that all stockholders present in person or by proxy are
entitled to cast, shall act as chairman of the meeting, and the Secretary, or,
in such person's absence, an Assistant Secretary, if any, or any person
appointed by the chairman of the meeting, shall act as secretary of the
meeting.
SECTION 2.07. PROXIES. Each stockholder entitled to vote at a
meeting of stockholders or to express consent or dissent to corporate action in
writing without a meeting may authorize another person or persons to act for
such stockholder by proxy, but no such proxy shall be voted or acted upon after
three (3) years from its date, unless the proxy provides for a longer period.
Every proxy shall be executed in writing by the stockholder, or by the
stockholder's duly authorized attorney-in-fact, and shall be filed with the
Secretary of the Corporation. A duly executed proxy shall be irrevocable if it
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. A proxy may be
made irrevocable regardless of whether the interest with which it is coupled is
an interest in the stock itself or an interest in the Corporation generally.
SECTION 2.08. CONSENT OF STOCKHOLDERS IN LIEU OF MEETING. Except
as otherwise provided by statute, any action that may be taken at a meeting of
stockholders by a vote of the stockholders may be taken with the written
consent of stockholders owning (and by such written consent, voting) in the
aggregate not less than the minimum percentage of the total number of shares
that by statute, the Certificate of Incorporation or these Bylaws are required
to be voted with respect to such proposed corporate action; provided, however,
that the written consent of a stockholder who would not have been entitled to
vote upon the action if a meeting were held shall not be counted; and further
provided, that prompt notice shall be given to all stockholders of the taking
of such corporate action without a meeting if less than unanimous written
consent of all stockholders who would have been entitled to vote on the action
if a meeting were held is obtained.
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SECTION 2.09. VOTING LISTS. The officer who has charge of the stock
ledger of the Corporation shall prepare and make, at least ten (10) calendar
days before every meeting of stockholders, a complete list of the stockholders
entitled to vote at the meeting. The list shall be arranged in alphabetical
order showing the address of each stockholder and the number of shares
registered in the name of such 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) calendar days prior to
the meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice 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 of the Corporation shall be the only 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 are entitled to vote in person or
by proxy at any annual or special meeting of the stockholders.
SECTION 2.10. VOTING PROCEDURES; JUDGES OF ELECTION. Except as
otherwise provided by applicable law, the Certificate of Incorporation, or
these Bylaws, or as directed by the chairman of the meeting, the election of
directors and the vote upon any other matter need not be by written ballot. In
advance of any meeting of stockholders, the Board of Directors may appoint one
or more judges of election, who need not be stockholders, to act at such
meeting or any adjournment thereof. If judges of election are not so appointed,
the chairman of any such meeting may, and, upon the demand of any stockholder
entitled to vote or such stockholder's proxy, at the meeting and before voting
begins, shall appoint judges of election. In the case of judges appointed upon
demand of a stockholder, the number of judges shall be either one (1) or three
(3), as determined by the stockholders present or represented by proxy,
entitled to cast a majority of votes that all stockholders present or so
represented are entitled to cast thereon. No person who is a candidate for
office shall act as a judge. In case any person appointed as judge fails to
appear or refuses to act, the vacancy may be filled by appointment made by the
Board of Directors in advance of the convening of the meeting, or at the
meeting by the chairman of the meeting.
Except as provided in the Certificate of Incorporation, if judges of
election are appointed as aforesaid, they shall (a) determine the number of
shares outstanding and the voting power of each, the shares represented at the
meeting, the existence of a quorum, and the authenticity, validity, and effect
of proxies; (b) receive votes or ballots; (c) hear and determine all challenges
and questions in any way arising in connection with the right to vote; (d)
count and tabulate all votes; (e) determine the results of the election or
other vote; and (f) do such acts as may be proper to conduct the election or
vote with fairness to all stockholders. If there be three (3) or more judges of
election, the decision, act, or certificate of a majority shall be effective in
all respects as the decision, act, or certificate of all.
On request of the chairman of the meeting or of any stockholder
entitled to vote or such stockholder's proxy, the judges shall make a report in
writing of any challenge, question, or other matter determined by them, and
shall execute a certificate of any fact found by them.
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ARTICLE III
BOARD OF DIRECTORS
SECTION 3.01. POWERS. The Board of Directors shall have full power
to manage the business and affairs of the Corporation, and all powers of the
Corporation, except those specifically reserved or granted to the stockholders
by applicable law, the Certificate of Incorporation, these Bylaws, the
Stockholders Agreement or the Rights Agreement, are hereby granted to and
vested in the Board of Directors. Without limiting the foregoing, the Board of
Directors may, if it so desires, appoint one or more advisory councils to the
Board of Directors, consisting of such numbers and with such duties as the
Board may deem appropriate.
SECTION 3.02. NUMBER, NOMINATIONS, ELECTION, TERM OF OFFICE,
REMOVAL, TERMINATION AND VACANCIES. The Board of Directors of the Company shall
consist of nine (9) members, (i) one (1) of whom shall be the Chief Executive
Officer of the Corporation, (ii) six (6) of whom shall be designated by the
holders (the "Existing Stockholders") from time to time of Common Stock (other
than any holders who acquired Common Stock upon conversion or exchange of
Series A Preferred), and (iii) two (2) of whom shall be designated by the
holders from time to time of Series A Preferred or Common Stock issued upon
conversion or otherwise in respect of Series A Preferred (the "Preferred
Holders"). If the number of directors serving on the Board of Directors shall
be increased or decreased, the Preferred Holders shall be entitled to designate
a minimum of twenty percent (20%) of the total number of directors elected to
serve on the Board of Directors. All nominations for directors shall be
submitted to the Board of Directors prior to each annual meeting of
stockholders of the Corporation and any other meeting of stockholders at which
directors are to be elected (or prior to the circulation of any written consent
of stockholders in lieu of such meeting(s)). The designated nominees of the
Existing Stockholders (the "Designees") shall be determined as follows: Each
Existing Stockholder shall be requested to nominate one individual. This list
of nominees shall be submitted to the Existing Stockholders who shall then
select the requisite number of Designees by voting their shares of Common Stock
on a non-cumulative basis for the number of Designees to be selected. The
individual(s) receiving a plurality of votes shall be the Designee(s).
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Elections of directors need not be by written ballot. Each director
shall serve for the term for which he or she is elected and until his or her
successor shall have been duly nominated, elected and qualified (except in the
event of his or her earlier death, resignation or removal).
If the Existing Stockholders or the Preferred Holders wish to cause
the removal of the director(s) which they had designated for the Board of
Directors, the other stockholders entitled to vote shall vote in favor of such
removal, as provided in the Stockholders Agreement and the Rights Agreement.
Any vacancies on the Board of Directors resulting from death,
resignation, termination, removal by the stockholders or from any increase in
the number of directors may be filled by the stockholders at the next annual
meeting thereof or at a special meeting called for that purpose in accordance
with Section 2.03 of Article II of these Bylaws. In such event, the
stockholder(s) that had designated such director(s) shall be entitled to
designate and nominate as provided herein a successor to fill the vacancy so
created, and in such instance the stockholder(s) shall vote in favor of such
designee or nominee as provided herein. Any director elected in accordance with
the two preceding sentences of this Section 3.02 shall hold office for the
remainder of the full term of the directorship being filled by such director
and until a successor shall have been elected and qualified. This Section 3.02
shall terminate upon a Qualified Public Offering of the Corporation's stock.
SECTION 3.03. QUALIFICATIONS. All directors of the Corporation
shall be natural persons, but need not be residents of Delaware or stockholders
of the Corporation.
SECTION 3.04. RESIGNATIONS. Any director of the Corporation may
resign at any time by giving written notice to the Chairman of the Board, the
President, or the Secretary of the Corporation. Such resignation shall take
effect at the date of the receipt of such notice or at any later time specified
therein and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective. Upon the effectiveness
of such resignation, the vacancy created thereby shall be filled in the manner
provided in Section 3.02 hereof.
SECTION 3.05. ORGANIZATION. At every meeting of the Board of
Directors, the Chairman of the Board, or in the case of a vacancy in the office
or absence of the Chairman of the Board, one of the following officers present
in the order stated: the President, the Vice Presidents in their order of rank,
or a chairman chosen by the affirmative vote of the directors holding
two-thirds (2/3) of the votes of the Board of Directors present, shall act as
chairman of the meeting, and the Secretary, or, in the absence of the
Secretary, an Assistant Secretary, if any, or any other person appointed by the
chairman of the meeting, shall act as secretary of the meeting.
SECTION 3.06. PLACE OF MEETING. All meetings of the Board of
Directors of the Corporation shall be held at the principal offices of the
Corporation, or at such other place within or without the State of Delaware as
shall be designated in a notice of such meeting or otherwise.
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SECTION 3.07. REGULAR MEETINGS. Regular meetings of the Board of
Directors may be held without notice at such time and place as shall be
designated from time to time by the Board of Directors. At such meetings, the
directors shall transact such business as may properly be brought before the
meeting.
SECTION 3.08. SPECIAL MEETINGS. Special meetings of the Board of
Directors may be held whenever called by the Chairman of the Board, the
President or by the affirmative vote of twenty percent (20%) or more of the
directors then in office. Except as otherwise provided by applicable law, the
Certificate of Incorporation, or these Bylaws, notice of each such meeting
shall be given to each director by telephone or in writing at least three (3)
calendar days (in the case of notice by telephone, telegram, cable, or
facsimile transmission) or seven (7) calendar days (in the case of notice by
mail) before the time at which the meeting is to be held. Each such notice
shall state the time and place of the meeting to be so held, and shall be
deemed to be given at the time when so made by telephone, sent by telegram,
cable, or facsimile transmission, or deposited in the U.S. mail. Unless
otherwise indicated in the notice thereof, any and all business may be
transacted at any special meeting.
SECTION 3.09. QUORUM, MANNER OF ACTING, AND ADJOURNMENT. (a) Each
director shall have one (1) vote on any matter voted upon by the Board of
Directors. The voting and other rights of the Corporation's directors and
stockholders are further defined and limited by the Certificate of
Incorporation, the Stockholders Agreement and the Rights Agreement.
(b) Except as otherwise provided by applicable law, the
Certificate of Incorporation, the Stockholders Agreement, the Rights Agreement
or these Bylaws, as amended from time to time, two-thirds (2/3) of the total
number of directors then in office shall constitute a quorum for the
transaction of business at all meetings of the Board of Directors, and the act
of two-thirds (2/3) or more of the directors present at any meeting at which
there is a quorum shall be the act of the Board. If a quorum shall not be
present at any meeting of the Board of Directors, the directors present thereat
may adjourn the meeting to another date and time by giving notice to each
director not less than five (5) calendar days before the time at which said
adjourned meeting is to be held, in the manner set forth in Section 3.08
hereof. Following any Qualified Public Offering of the Corporation's stock, a
majority of the total number of directors then in office shall constitute a
quorum for the transaction of business at all meetings of the Board of
Directors, and the act of a majority of the directors present at any meeting at
which there is a quorum shall be the act of the Board.
(c) Notwithstanding paragraph (b) above, (i) the appointment or
removal of the Chairman of the Board or the President; (ii) the approval of
annual business plans, budgets, or strategic plans, (iii) any material change
in the scope of the business of the Corporation; (iv) the approval of policies
concerning the payment of dividends or other distributions; (v) the approval of
capital expenditures in excess of one million dollars ($1,000,000.00); and (vi)
the approval of changes in the Corporation's accounting or tax policies
inconsistent with generally accepted accounting principles shall require the
affirmative vote of three-fourths (3/4) or more of the directors present at any
meeting at which there is a quorum. This Subsection (c) shall terminate upon a
qualified public offering of the Corporation's stock and shall not apply with
respect to any action required to effectuate such public offering.
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SECTION 3.10. CONSENT IN LIEU OF MEETING. Except as otherwise
provided by applicable law, the Certificate of Incorporation, or these Bylaws,
and notwithstanding Section 3.08 hereof, 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 if all members of the Board or the committee, as
the case may be, consent thereto in writing, and the writing or writings are
filed with the minutes of proceedings of the Board or the committee, as the
case may be.
SECTION 3.11. CONFERENCE TELEPHONE MEETINGS. Except as otherwise
provided by applicable law, the Certificate of Incorporation, or these Bylaws,
one or more directors may participate in a meeting of the Board of Directors,
or of any committee thereof, by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other. Participation in a meeting pursuant to this
section shall constitute presence in person at such meeting.
SECTION 3.12. EXECUTIVE AND OTHER COMMITTEES. The Board of
Directors may, by resolution adopted by the affirmative vote of a majority of
the whole Board of Directors, designate and name an Executive Committee and one
or more other committees, each committee to consist of one (1) or more
directors, provided that any Executive Committee shall have at least three (3)
directors. The Board may designate one (1) 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 a member (and
the alternate or alternates, if any, designated for such member) of any
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 director to act at the meeting in the
place of any such absent or disqualified member.
Any such committee (to the extent provided in the resolution
establishing such committee) shall conduct itself, including with respect to
provisions for votes of its members, as set forth in resolutions adopted by the
Board of Directors, and 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, expressly including the power and authority to
declare a dividend, to adopt a certificate of ownership and merger pursuant to
Section 253 of the Delaware General Corporation Law (the "GCL"), and to
authorize the seal of the Corporation to be affixed to all papers which may
require it. Notwithstanding the foregoing, no such committee shall have the
power or authority (a) to amend the Certificate of Incorporation or to 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 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 to fix the number of shares of any
series of stock, or to authorize the increase or decrease of the shares of any
series; (b) to adopt an agreement of merger or consolidation under Sections 251
or 252 of the GCL; (c) to recommend to the stockholders the sale, lease, or
exchange of all or substantially all of the Corporation's property and assets;
(d) to recommend to the stockholders a dissolution of the Corporation or a
revocation of a dissolution; (e) to amend the Bylaws of the Corporation; or (f)
to authorize the issuance of stock.
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Each committee designated pursuant to this section shall keep regular
minutes of its meetings and report the same to the Board of Directors when
required.
SECTION 3.13. COMPENSATION OF DIRECTORS. The Board of Directors
shall have the authority to fix the compensation of directors. The directors
may be paid their expenses, if any, of attendance at each meeting of the Board
of Directors and may be paid a fixed sum for attendance at each meeting of the
Board of Directors or a stated salary as director. No such payment shall
preclude any director from serving the Corporation in any other capacity and
receiving compensation therefor; provided that, the Board, in its discretion,
may reduce the compensation of any director who is concurrently receiving
compensation for services rendered to the Corporation as an officer thereof.
Members of special or standing committees may be paid like compensation for
attending committee meetings.
SECTION 3.14. INTERESTED DIRECTORS. No contract or transaction
between the Corporation and one (1) or more of its directors or officers, or
between the Corporation and any other corporation, partnership, association, or
other organization in which one or more of its directors or officers are
directors or officers, or have a financial interest, shall be void or voidable
solely for this reason, or solely because the director or officer is present at
or participates in the meeting of the Board or of a committee thereof which
authorizes the contract or transaction, or solely because his, her or their
votes are counted for such purpose, if:
(a) The material facts as to his or her relationship or
interest and as to the contract or transaction are
disclosed or are known to the Board of Directors or
the committee, and the Board or committee in good
faith authorizes the contract or transaction by the
affirmative vote of a majority of the disinterested
directors, even though the disinterested directors
comprise less than a quorum;
(b) The material facts as to his or her 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
(c) 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
thereof, 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 which
authorizes the contract or transaction.
ARTICLE IV
NOTICE-WAIVERS
SECTION 4.01. NOTICE. WHAT CONSTITUTES. Except as otherwise
provided in the Bylaws, any provision of applicable law, the Certificate of
Incorporation or these Bylaws which
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requires notice to be given to any director or stockholder of the Corporation
shall not be deemed or constituted to require personal notice (unless otherwise
expressly provided therein), but rather such notice may be given via telephone,
facsimile or first class mail addressed to such director or stockholder at his
or her address as it appears on the records of the Corporation, with postage
thereon prepaid, and such notice shall be deemed to be given at the time when
the same is deposited in the U.S. mail.
SECTION 4.02. WAIVERS OF NOTICE. Whenever any notice is required to
be given under applicable law, the Certificate of Incorporation or these
Bylaws, a written waiver hereof, signed by the person or persons entitled to
such notice, whether before or after the time stated therein, shall be deemed
equivalent to notice. Except as otherwise provided by applicable law, the
Certificate of Incorporation or these Bylaws, neither the business to be
transacted at nor the purposes of, any regular or special meeting of the
stockholders, directors, or a committee of directors need be specified in any
written waiver of notice of such meeting.
Attendance of a person, either in person or by proxy, at any meeting
shall constitute a waiver of notice of such meeting, except when a person
attends a meeting for the express purpose of objecting at the beginning of the
meeting to the transaction of any business because the meeting has not been
lawfully called or convened.
Notwithstanding any of the foregoing, except in the case of written
consents of less than all of the stockholders as provided in Section 2.08 of
these Bylaws, no waiver of notice shall be valid or shall be deemed equivalent
to notice unless all directors or stockholders entitled to vote on any matters
which are a subject of the meeting in question shall give such a waiver of
notice, whether before, at or after the meeting.
ARTICLE V
OFFICERS
SECTION 5.01. NUMBER, QUALIFICATIONS AND DESIGNATION. The officers
of the Corporation shall be chosen by the Board of Directors and shall be a
President and a Secretary, and may include one or more Vice Presidents, a
Treasurer, and such other officers as may be elected in accordance with the
provisions of Section 5.03 of this Article V. One person may hold more than one
(1) office. Except as provided below with respect to the Chairman of the Board,
and Vice Chairmen of the Board, officers may, but need not be, directors or
stockholders of the Corporation. The Board of Directors shall also elect, from
among the members of the Board, a Chairman of the Board, and one or more Vice
Chairmen of the Board, each of which shall be deemed to be an officer of the
Corporation.
SECTION 5.02. ELECTION, TERM OF OFFICE, RESIGNATION, AND REMOVAL.
The officers of the Corporation, except those elected by delegated authority
pursuant to Section 5.03 of this Article V, shall be elected annually by the
Board of Directors, and each such officer shall hold his or her office until
his or her successor shall have been duly elected and qualified, or until his
or her earlier death, resignation or removal. Any officer may resign at any
time upon written notice to the Corporation. Subject to the terms of any
applicable employment or service agreement, all officers, agents, and employees
shall be subject to removal, with or without
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cause, at any time by the Board of Directors. The election or appointment of an
officer shall not of itself create contract rights. Any vacancy caused by the
death, resignation, or removal of any officer, or otherwise, may be filled by
the Board of Directors or pursuant to delegated authority as provided in
Section 5.03 hereof.
SECTION 5.03. OTHER OFFICERS, COMMITTEES, AND AGENTS. The Board of
Directors may from time to time elect such other officers, including Assistant
Secretaries and Assistant Treasurers, and appoint such committees, employees,
or other agents as it deems necessary. Such officers, committee members,
employees, or other agents shall hold their offices for such terms and shall
exercise such powers and perform such duties as are provided in these Bylaws or
as the Board of Directors may from time to time determine by resolution. By
resolution, the Board of Directors may delegate to any officer or committee the
power to elect subordinate officers and to retain or appoint employees or other
agents, or committees thereof, and to prescribe the authority and duties of
such subordinate officers, committees, employees, or other agents. Subject to
the terms of any applicable employment or service agreement, all such
subordinate officers, agents, and employees shall also be subject to removal,
with or without cause, at any time by the officers or committee appointing
them.
SECTION 5.04. THE CHAIRMAN OF THE BOARD. The Chairman of the Board
shall preside at meetings of the Board of Directors and at meetings of the
stockholders. The Chairman of the Board shall counsel with and advise the
President and perform such other duties as may be from time to time assigned to
the Chairman of the Board of Directors. Except as otherwise provided by
resolution of the Board, the Chairman of the Board shall be ex-officio a member
of all committees of the Board.
SECTION 5.05. THE VICE CHAIRMEN OF THE BOARD. The Vice Chairmen of
the Board shall perform the duties of the Chairman of the Board in the
Chairman's absence (in their order of rank) and such other duties as may from
time to time be assigned to them by the Board of Directors, the Chairman of the
Board, or the President.
SECTION 5.06. THE PRESIDENT. The President shall perform all of the
duties usually incident to such office, and such other duties as may from time
to time be assigned to the President by the Board of Directors. In the absence
of the Chairman of the Board and any Vice Chairmen of the Board, the President
shall preside at all meetings of the stockholders and of the Board of
Directors.
SECTION 5.07. THE SECRETARY. The Secretary, or in the Secretary's
absence an Assistant Secretary, (a) shall attend all meetings of the
stockholders and of the Board of Directors and shall record the proceedings of
the meetings of the stockholders and the Board of Directors and of committees
of the Board in a book or books to be kept for that purpose; (b) shall see that
notices are given and records and reports properly kept and filed by the
Corporation as required by law; (c) shall be the custodian of the seal of the
Corporation and see that it is affixed to all documents to be executed on
behalf of the Corporation under its seal; and, (d) in general, shall perform
all duties incident to the office of Secretary, and such other duties as may
from time to time be assigned to the Secretary by the Board of Directors, the
Chairman of the Board, or the President.
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SECTION 5.08. THE TREASURER. The Treasurer, or in Treasurer's
absence, an Assistant Treasurer, (a) shall have or provide for the custody of,
and when proper pay out, disburse, or otherwise dispose of, the funds or other
property of the Corporation; (b) shall collect and receive or provide for the
collection and receipt of moneys earned by or in any manner due to or received
by the Corporation; (c) shall deposit all funds in his custody as Treasurer in
such banks or other places of deposit as the Board of Directors may from time
to time designate; (d) shall keep accurate financial records and accounts and,
whenever so required by the Board of Directors, render statements showing his
transactions as Treasurer and the financial condition of the Corporation; and
(e) in general, shall discharge such other duties as may from time to time by
assigned to the Treasurer by the Board of Directors, the Chairman of the Board,
or the President.
SECTION 5.09. SALARIES. The salaries and other compensation of the
officers and agents of the Corporation elected or appointed by the Board of
Directors shall be fixed from time to time by the Board of Directors. The
salaries and other compensation of subordinate officers appointed pursuant to
delegated authority under Section 5.03 hereof shall be fixed from time to time
by the officers or committee appointing them.
ARTICLE VI
CERTIFICATES OF STOCK, TRANSFER, ETC.
SECTION 6.01. ISSUANCE. Each stockholder shall be entitled to a
certificate or certificates for shares of stock of the Corporation owned by
such stockholder upon request therefor. The stock certificates of the
Corporation shall be consecutively numbered and shall be registered in the
stock ledger and transfer books of the Corporation as they are issued. They
shall be signed by the Chairman of the Board or by the President or a Vice
President, and by the Secretary or an Assistant Secretary, if any, or by the
Treasurer or an Assistant Treasurer, if any, and shall bear the corporate seal,
which may be a facsimile, engraved, or printed. Any and all of the signatures
upon such certificate may be a facsimile, engraved, or printed. In case any
officer, transfer agent, or registrar who has signed, or whose facsimile
signature has been placed upon, any share certificate shall have ceased to be
such officer, transfer agent, or registrar before the certificate is issued, it
may be issued with the same effect as if such person were such officer,
transfer agent, or registrar at the date of its issue.
SECTION 6.02. RESTRICTION ON TRANSFER. No stockholder shall sell,
transfer, or otherwise dispose of such stockholder's shares of stock without
first offering said shares to the Corporation if and to the extent required by
the terms of the Stockholders Agreement or the Rights Agreement. This Section
6.02 shall terminate upon a Qualified Public Offering of the Corporation's
stock.
SECTION 6.03 TRANSFER, LEGENDS, ETC. Upon surrender to the
Corporation or the transfer agent of the Corporation of a certificate for
shares duly endorsed or accompanied by proper evidence of succession,
assignation, or authority to transfer the Corporation shall issue a new
certificate to the person entitled thereto, cancel the old certificate, and
record the transaction upon its books. The Board of Directors may by
resolution, (a) impose restrictions on transfer or registration of transfer of
shares of stock of the Corporation, and (b) require as
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a condition to the issuance or transfer of such shares that the person or
persons to whom such shares are to be issued or transferred agree in writing to
such restrictions. In the event that any such restrictions on transfer or
registration of transfer are so imposed, the Corporation shall require that
such restrictions be conspicuously noted on all certificates representing such
shares. In addition, all shares of the Corporation's stock are subject to
several restrictions and limitations as set forth in the Stockholders Agreement
and the Rights Agreement, which are to be noted on all certificates
representing such shares.
SECTION 6.04. LOST, STOLEN, DEFACED, WORN OUT, OR DESTROYED. The
Board of Directors may direct a new certificate or certificates to be issued in
place of any certificate or certificates theretofore issued by the Corporation
alleged to have been lost, stolen, defaced, worn-out, or destroyed, upon the
making of an affidavit of that fact by the person claiming the certificate of
stock to be lost, stolen, defaced, worn out, or destroyed. When authorizing
such issuance of a new certificate or certificates, the Corporation may, as a
condition precedent thereto, (a) require the owner of any defaced or worn out
certificate to deliver such certificate to the Corporation and order the
cancellation of the same, and (b) require the owner of any lost, stolen or
destroyed certificate or certificates, or his legal representative, to
advertise the same in such manner as the Corporation shall require and to give
the Corporation a bond in such sum as it may direct as indemnity against any
claim that may be made against the Corporation with respect to the certificate
alleged to have been lost, stolen, or destroyed. Thereupon, the Corporation may
cause to be issued to such person a new certificate in replacement for the
certificate alleged to have been lost, stolen, defaced, worn out, or destroyed.
Upon the stub of every new certificate so issued shall be noted the fact of
such issue and the number, date, and name of the registered owner of the lost,
stolen, defaced, worn out, or destroyed certificate in lieu of which the new
certificate is issued. Every certificate issued hereunder shall be issued
without payment to the Corporation for such certificate; provided that, there
shall be paid to the Corporation a sum equal to any exceptional expenses
incurred by the Corporation in providing for or obtaining any such indemnity
and security as is referred to herein.
SECTION 6.05. RECORD HOLDER OF SHARES. Except as otherwise provided
by applicable law, the Certificate of Incorporation, or these Bylaws, the
Corporation (a) shall be entitled to recognize the exclusive right of a person
registered on its books as the owner of shares to receive dividends and to vote
as such owner, (b) shall be entitled to hold liable for any required calls and
assessments a person so registered, and (c) shall not be bound to recognize (i)
any entity or person as a transferee of stock unless such entity or person both
complies with all transfer and other restriction imposed hereby or by the
Certificate of Incorporation and Stockholders Agreement and first becomes a
party to Stockholders Agreement, or (ii) 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.
The Corporation may treat a fiduciary as having capability and
authority to exercise all rights of ownership in respect of shares of record in
the name of a decedent holder, a person, firm, or corporation in conservation,
receivership, or bankruptcy, a minor, an incompetent person, or a person under
disability, as the case may be, for whom such fiduciary is acting, and the
Corporation, its transfer agent, and its registrar, if any, upon presentation
of evidence of appointment of such fiduciary shall be under no duty to inquire
as to the powers of such
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fiduciary and shall not be liable for any loss caused by any act done or
omitted to be done by the Corporation or its transfer agent or registrar, if
any, in reliance thereon.
SECTION 6.06. DETERMINATION OF STOCKHOLDERS OF RECORD. In order
that the Corporation may determine the stockholders entitled to notice of or to
vote at any meeting of stockholders or any adjournment thereof, or to express
consent to corporate action in writing without a meeting, or entitled to
receive payments 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, the Board of Directors may fix, in advance, a record date, which shall
not be more than sixty (60) nor less than (10) calendar days before the date of
such meeting, nor more than sixty (60) calendar days prior to any other action.
If no record date is fixed:
(a) 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 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.
(b) 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 necessary, 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 by delivery to its registered office
in Delaware, its principal place of business, or an
officer or agent of the Corporation having custody of
the book in which proceedings of meetings of
stockholders are recorded.
(c) 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 thereto.
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
that the Board of Directors may fix a new record date for the adjourned
meeting.
SECTION 6.07. APPOINTMENT OF TRANSFER AGENTS, REGISTRARS, ETC. The
Board of Directors may from time to time by resolution appoint (a) one (1) or
more transfer agents and registrars for the shares of stock of the Corporation,
(b) a plan agent to administer any employee benefit, dividend reinvestment, or
similar plan of the Corporation, and (c) a dividend disbursing agent to
disburse any and all dividends authorized by the Board and payable with respect
to the shares of stock of the Corporation. The Board of Directors shall also
have authority to make such other rules and regulations not inconsistent with
applicable law, the Certificate of Incorporation, or these Bylaws, as it deems
necessary or advisable with respect to the issuance, transfer, and registration
of certificates for shares and the shares of stock represented thereby.
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ARTICLE VII
GENERAL PROVISIONS
SECTION 7.01. DIVIDENDS. Dividends, if any, upon the capital stock
of the Corporation may be declared only by the affirmative vote of at least
three-fourths (3/4) of the members of the Board of Directors then in office, at
any regular or special meeting of the Board of Directors. Dividends may be paid
in cash, in property, or in shares of the capital stock of the Corporation, or
in any combination thereof, but only out of funds available for the payment of
dividends as provided by applicable law. Any dividends declared upon the stock
of the Corporation shall be payable on such date or dates as the Board of
Directors shall determine by resolution. If the date fixed for the payment of
any dividend shall in any year fall upon a legal holiday, then the dividend
payable on such date shall be paid on the next day not a legal holiday.
Before payment of any dividend, there may be set aside out of any
funds of the Corporation available for dividends such sum or sums as the Board
of Directors from time to time, in its discretion, shall determine by
resolution is proper as a reserve or reserves to meet contingencies, for
equalizing dividends, or for repairing or maintaining any property of the
Corporation, or for such other purpose as the Board of Directors shall so
determine is in the best interests of the Corporation and its stockholders. The
Board may modify or abolish any such reserves in the manner in which it was
created.
SECTION 7.02. CONTRACTS, ETC. Except as otherwise provided by
applicable law, the Certificate of Incorporation, or these Bylaws, the Board of
Directors may authorize any officer or officers, any employee or employees, or
any agent or agents, to enter into any contract or to execute, acknowledge, or
deliver any agreement, deed, mortgage, bond, or other instrument in the name of
and on behalf of the Corporation and to affix the Corporation's seal thereon.
Such authority may be general or confined to specific instances.
SECTION 7.03. CHECKS. All checks, notes, obligations, bills of
exchange, acceptances, or other orders in writing shall be signed by such
person or persons as the Board of Directors may from time to time designate by
resolution.
SECTION 7.04. CORPORATE SEAL. The corporate seal shall have
inscribed thereon the name of the Corporation, the year of its organization,
and the words "Corporate Seal, Delaware." The seal may be used by causing it or
a facsimile thereof to be impressed or affixed or in any other manner
reproduced.
SECTION 7.05. DEPOSITS. All funds of the Corporation shall be
deposited from time to time to credit of the Corporation in such banks, trust
companies, or other depositories as the Board of Directors may approve or
designate, and all such funds shall be withdrawn only upon checks or other
orders signed by such one or more officers, employees, or agents as the Board
of Directors shall from time to time designate.
SECTION 7.06. EXAMINATION OF CORPORATE RECORDS. Upon written demand
under oath stating the purpose thereof, every stockholder of record shall have
a right to examine, in person or by attorney or other agent, during ordinary
business hours and for any proper purpose,
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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 of inspection, the demand under oath shall be accompanied by a
power of attorney or 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 as its registered office in Delaware or at its principal
place of business.
Any director shall have the right to examine the Corporation's stock
ledger, a list of its stockholders, and its other books and records during
ordinary business hours for a purpose reasonably related to his or her position
as a director.
SECTION 7.07. INDEMNIFICATION OF DIRECTORS AND OFFICERS. The
Corporation shall indemnify to the fullest extent authorized or permitted by
law any current or former director or officer of the Corporation (or his or her
testator or estate) made or threatened to be made a party to any threatened,
pending, or completed action, suit, or proceeding, whether criminal, civil
administrative, or investigative, by reason of the fact that he or she is or
was a director or officer of the Corporation or is or was serving, at the
request of the Corporation, as a director, officer, employee, or agent of
another corporation, partnership, joint venture, trust, employee benefit plan,
or other enterprise. Subject to applicable law, the Corporation may indemnify
an employee or agent of the Corporation to the extent that and with respect to
such proceedings as, the Board of Directors may determine by resolution, in its
discretion.
SECTION 7.08. AMENDMENT OF BYLAWS. (a) These Bylaws may be amended,
modified, or repealed, or new Bylaws may be adopted by the Board of Directors
of the Corporation, subject to (i) the consent of the holders of Series A
Preferred as provided in the Rights Agreement and (ii) amendment, modification
or repeal, by the Corporation's stockholders. Any such amendment, modification
or repeal by the Corporation's stockholders shall require, in addition to all
applicable requirements of law and the Certificate of Incorporation, the
affirmative vote of the record holders of two-thirds (2/3) or more of the
outstanding shares of Common Stock, at any annual meeting of stockholders or at
any special meeting thereof, if notice of such amendment, modification, repeal
or adoption of new Bylaws is contained in the notice of such special meeting.
Notwithstanding any of the foregoing to the contrary, Section 2.01 (c) hereof
may not be amended, modified or repealed by either the Board of Directors or
the stockholders without the unanimous vote of all holders of record of stock.
(b) Notwithstanding the above paragraph, this paragraph (b) of
Section 7.08 and paragraph (c) of Section 3.09 may only be amended, modified,
or repealed by the Board of Directors of the Corporation with the affirmative
vote of three-fourths (3/4) or more of the Board of Directors at any meeting of
the Board at which there is a quorum.
(c) Following a Qualified Public Offering of the Corporation's
stock, these Bylaws may be amended, modified, or repealed, or new Bylaws may be
adopted by the Board of Directors of the Corporation, subject to amendment,
modification or repeal by the Corporation's stockholders and applicable law.
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