EXHIBIT 2.2
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SECOND AMENDED AND RESTATED
BY-LAWS
of
SPECTRASITE, INC.
(A Delaware Corporation)
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ARTICLE 1
DEFINITIONS
As used in these By-laws, unless the context otherwise requires, the
term:
1.1 "Assistant Secretary" means an Assistant Secretary of the
Corporation.
1.2 "Assistant Treasurer" means an Assistant Treasurer of the
Corporation.
1.3 "Board" means the Board of Directors of the Corporation.
1.4 "By-laws" means the Second Amended and Restated By-laws of the
Corporation, as amended from time to time.
1.5 "Certificate of Incorporation" means the Third Amended and
Restated Certificate of Incorporation of the Corporation, as amended,
supplemented or restated from time to time.
1.6 "Chairman" means the Chairman of the Board of Directors of the
Corporation.
1.7 "Corporation" means SpectraSite, Inc.
1.8 "Directors" means directors of the Corporation.
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1.9 "Entire Board" means all then authorized directors of the
Corporation.
1.10 "General Corporation Law" means the General Corporation Law of
the State of Delaware, as amended from time to time.
1.11 "Office of the Corporation" means the executive office of the
Corporation, anything in Section 131 of the General Corporation Law to the
contrary notwithstanding.
1.12 "President" means the President of the Corporation.
1.13 "Secretary" means the Secretary of the Corporation.
1.14 "Stockholders" means stockholders of the Corporation.
1.15 "Treasurer" means the Treasurer of the Corporation.
1.16 "Vice President" means a Vice President of the Corporation.
ARTICLE 2
STOCKHOLDERS
2.1 PLACE OF MEETINGS. Every meeting of Stockholders may be held
at such place, within or without the State of Delaware, as may be designated by
resolution of the Board from time to time. The Board may, in its sole
discretion, determine that the meeting of Stockholders shall not be held at any
place, but may instead be held solely by means of remote communication in
accordance with Delaware law.
2.2 ANNUAL MEETING. If required by applicable law, a meeting of
Stockholders shall be held annually for the election of Directors at such date
and time as may be designated by resolution of the Board from time to time. Any
other business may be transacted at the annual meeting.
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2.3 SPECIAL MEETINGS. Unless otherwise prescribed by applicable
law, special meetings of Stockholders may be called at any time by the Board or
by one or more Stockholders holding shares in the aggregate entitled to vote not
less than 10% of the stock entitled to vote at that meeting. Business transacted
at any special meeting of Stockholders shall be limited to the purpose stated in
the notice.
Upon request in writing sent by registered mail to the President or the
Secretary by any Stockholder or Stockholders entitled to call a special meeting
of Stockholders pursuant to this Section 2.3, the Board (or the Chairman in the
absence of a designation by the Board) shall determine a place and time for such
meeting and a record date for the determination of Stockholders entitled to vote
at such meeting in the manner set forth in Section 2.4 hereof. Following such
receipt and determination, it shall be the duty of the Secretary or any
Assistant Secretary to cause notice to be given to the Stockholders entitled to
vote at such meeting, in the manner set forth in Section 2.5 hereof. If such
officers shall fail to cause such notice to be given within ninety (90) days
after receipt of such Stockholder request, the Stockholder executing such
request may call such meeting by causing notice to be given to the Stockholders
entitled to vote at such meeting, in the manner set forth in Section 2.5 hereof.
2.4 FIXING RECORD DATE. For the purpose of (a) determining the
Stockholders entitled (i) to notice of or to vote at any meeting of Stockholders
or any adjournment thereof, (ii) unless otherwise provided in the Certificate of
Incorporation, to express consent to corporate action in writing without a
meeting or (iii) 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 (b) any
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other lawful action, the Board may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date was
adopted by the Board and which record date, unless otherwise required by
applicable law, shall not be (x) in the case of clause (a)(i) above, more than
60 nor less than 10 days before the date of such meeting, (y) in the case of
clause (a)(ii) above, more than 10 days after the date upon which the resolution
fixing the record date was adopted by the Board and (z) in the case of clause
(a)(iii) or (b) above, more than 60 days prior to such action. If no such record
date is fixed:
2.4.1 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;
2.4.2 the record date for determining Stockholders entitled
to express consent to corporate action in writing without a meeting (unless
otherwise provided in the Certificate of Incorporation), shall be at the close
of business on the date on which the Board adopts the resolution allowing such
action; and
2.4.3 the record date for determining Stockholders for any
purpose other than those specified in Sections 2.4.1 and 2.4.2 shall be at the
close of business on the day on which the Board adopts the resolution relating
thereto. When a determination of Stockholders of record entitled to notice of or
to vote at any meeting of Stockholders has been made as provided in this Section
2.4, such determination shall apply to any adjournment thereof unless the Board
fixes a new record date for the adjourned meeting.
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2.5 NOTICE OF MEETINGS OF STOCKHOLDERS. Whenever under the
provisions of applicable law, the Certificate of Incorporation or these By-laws,
Stockholders are required or permitted to take any action at a meeting, notice
shall be given stating the place, if any, date and hour of the meeting, the
means of remote communication, if any, by which Stockholders and proxy holders
may be deemed to be present in person and vote at such meeting, and, in the case
of a special meeting, the purpose or purposes for which the meeting is called.
Unless otherwise provided by applicable law, the Certificate of Incorporation or
these By-laws, notice of any meeting shall be given, not less than 10 nor more
than 60 days before the date of the meeting, to each Stockholder entitled to
vote at such meeting. If mailed, such notice shall be deemed to be given when
deposited in the United States mail, with postage prepaid, directed to the
Stockholder at his or her address as it appears on the records of the
Corporation. An affidavit of the Secretary or an Assistant Secretary or of the
transfer agent of the Corporation that the notice required by this Section 2.5
has been given shall, in the absence of fraud, be PRIMA FACIE evidence of the
facts stated therein. Any meeting of Stockholders, annual or special, may
adjourn from time to time to reconvene at the same or some other place. When a
meeting is adjourned to another time or place, notice need not be given of the
adjourned meeting if the time and place thereof are announced at the meeting at
which the adjournment is taken, and at the adjourned meeting any business may be
transacted that might have been transacted at the meeting as originally called.
If, however, the adjournment is for more than 30 days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each Stockholder of record entitled to
vote at the meeting.
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2.6 WAIVERS OF NOTICE. Whenever the giving of any notice to
Stockholders is required by applicable law, the Certificate of Incorporation or
these By-laws, a waiver thereof, given by the person entitled to said notice,
whether before or after the event as to which such notice is required, shall be
deemed equivalent to notice. Attendance by a Stockholder at a meeting 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 on the ground that the meeting has
not been 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 waiver of notice unless so required by applicable law, the
Certificate of Incorporation or these By-laws.
2.7 LIST OF STOCKHOLDERS. The Secretary shall prepare and make, at
least 10 days before every meeting of Stockholders, a complete list of the
Stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each Stockholder and the number of shares registered
in the name of each Stockholder. Such list shall be open to the examination of
any Stockholder, the Stockholder's agent, or attorney, at the Stockholder's
expense, for any purpose germane to the meeting, for a period of at least 10
days prior to the meeting, during ordinary business hours at the principal place
of business of the Corporation, or on a reasonably accessible electronic network
as provided by applicable law. If the meeting is to be held at a place, the list
shall also be produced and kept at the time and place of the meeting during the
whole time thereof, and may be inspected by any Stockholder who is present. If
the meeting is held solely by means of remote communication, the list shall also
be open for
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examination as provided by applicable law. Upon the willful neglect or refusal
of the Directors to produce such a list at any meeting for the election of
Directors, they shall be ineligible for election to any office at such meeting.
Except as provided by applicable law, the stock ledger shall be the only
evidence as to who are the Stockholders entitled to examine the stock ledger,
the list of Stockholders or the books of the Corporation, or to vote in person
or by proxy at any meeting of Stockholders.
2.8 QUORUM OF STOCKHOLDERS; ADJOURNMENT. Except as otherwise
provided by applicable law, the Certificate of Incorporation or these By-laws,
at each meeting of Stockholders, the presence in person or by proxy of the
holders of a majority in voting power of all outstanding shares of stock
entitled to vote at the meeting of Stockholders, shall constitute a quorum for
the transaction of any business at such meeting. In the absence of a quorum, the
holders of a majority in voting power of the shares of stock present in person
or represented by proxy at any meeting of Stockholders, including an adjourned
meeting, whether or not a quorum is present, may adjourn such meeting to another
time and place. Shares of its own 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 neither be entitled to vote nor be counted for quorum
purposes; PROVIDED, HOWEVER, that the foregoing shall not limit the right of the
Corporation to vote stock, including but not limited to its own stock, held by
it in a fiduciary capacity.
2.9 VOTING; PROXIES. Unless otherwise provided in the Certificate
of Incorporation, every Stockholder entitled to vote at any meeting of
Stockholders shall be entitled to one vote for each share of stock held by such
Stockholder which has voting
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power upon the matter in question. At any meeting of Stockholders, all matters,
except as otherwise provided by the Certificate of Incorporation, these By-laws,
the rules and regulations of any stock exchange applicable to the Corporation,
applicable law or pursuant to any rules or regulations applicable to the
Corporation or its securities, shall be decided by the affirmative vote of a
majority in voting power of shares of stock present in person or represented by
proxy and entitled to vote thereon. At all meetings of Stockholders for the
election of Directors, a plurality of the votes cast shall be sufficient to so
elect. 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 years from its date, unless
the proxy provides for a longer period. A proxy shall be irrevocable if it
states that it is irrevocable and if, and only so long as, it is coupled with an
interest sufficient in law to support an irrevocable power. A Stockholder may
revoke any proxy that is not irrevocable by attending the meeting and voting in
person or by delivering to the Secretary a revocation of the proxy or by
delivering a new proxy bearing a later date.
2.10 VOTING PROCEDURES AND INSPECTORS OF ELECTION AT MEETINGS OF
STOCKHOLDERS. The Board, in advance of any meeting of Stockholders, may, and
shall if required by applicable law, appoint one or more inspectors, who may be
employees of the Corporation, to act at the meeting and make a written report
thereof. The Board may designate one or more persons as alternate inspectors to
replace any inspector who fails to act. If no inspector or alternate is able to
act at a meeting, the person presiding at the meeting may, and shall if required
by applicable law, appoint one or more inspectors to
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act at the meeting. No person who is a candidate for office at an election may
serve as an inspector at such election. Each inspector, before entering upon the
discharge of his or her duties, shall take and sign an oath faithfully to
execute the duties of inspector with strict impartiality and according to the
best of his or her ability. The inspectors shall (a) ascertain the number of
shares outstanding and the voting power of each, (b) determine the shares
represented at the meeting and the validity of proxies and ballots, (c) count
all votes and ballots, (d) determine and retain for a reasonable period a record
of the disposition of any challenges made to any determination by the
inspectors, and (e) certify their determination of the number of shares
represented at the meeting and their count of all votes and ballots. The
inspectors may appoint or retain other persons or entities to assist the
inspectors in the performance of their duties. Unless otherwise provided by the
Board, the date and time of the opening and the closing of the polls for each
matter upon which the Stockholders will vote at a meeting shall be determined by
the person presiding at the meeting and shall be announced at the meeting. No
ballot, proxies or votes, or any revocation thereof or change thereto, shall be
accepted by the inspectors after the closing of the polls unless the Court of
Chancery of the State of Delaware upon application by a Stockholder shall
determine otherwise. In determining the validity and counting of proxies and
ballots cast at any meeting of Stockholders, the inspectors may consider such
information as is permitted by applicable law.
2.11 CONDUCT OF MEETINGS; ORGANIZATION.
2.11.1 The Board may adopt by resolution such rules and
regulations for the conduct of the meeting of Stockholders as it shall deem
appropriate. At each meeting of Stockholders, the President, or in the absence
of the President, the
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Chairman, or if there is no Chairman or if there be one and the Chairman is
absent, a Vice President, and in case more than one Vice President shall be
present, that Vice President designated by the Board (or in the absence of any
such designation, the most senior Vice President, based on age, present), shall
preside over the meeting. Except to the extent inconsistent with such rules and
regulations as adopted by the Board, the person presiding over any meeting of
Stockholders shall have the right and authority to convene and to adjourn the
meeting, to prescribe such rules, regulations and procedures and to do all such
acts as, in the judgment of such person, are appropriate for the proper conduct
of the meeting. Such rules, regulations or procedures, whether adopted by the
Board or prescribed by the presiding officer of the meeting, may include,
without limitation, the following: (i) the establishment of an agenda or order
of business for the meeting; (ii) rules and procedures 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
person presiding over 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. The
presiding officer at any meeting of Stockholders, in addition to making any
other determinations that may be appropriate to the conduct of the meeting,
shall, if the facts warrant, determine and declare to the meeting that a matter
or business was not properly brought before the meeting and if such presiding
officer should so determine, such person shall so declare to the meeting and any
such matter or business not properly brought before the meeting shall not be
transacted or considered. Unless and to the extent determined by the Board
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or the person presiding over the meeting, meetings of Stockholders shall not be
required to be held in accordance with the rules of parliamentary procedure. The
Secretary, or in his or her absence, one of the Assistant Secretaries, shall act
as secretary of the meeting. In case none of the officers above designated to
act as the person presiding over the meeting or as secretary of the meeting,
respectively, shall be present, a person presiding over the meeting or a
secretary of the meeting, as the case may be, shall be designated by the Board,
and in case the Board has not so acted, in the case of the designation of a
person to act as secretary of the meeting, designated by the person presiding
over the meeting.
2.11.2 Only persons who are nominated in accordance with the
following procedures shall be eligible for election as Directors. Nominations of
persons for election to the Board may be made at an annual meeting or special
meeting of Stockholders only (i) by or at the direction of the Board, (ii) by
any nominating committee designated by the Board or (iii) by any Stockholder of
the Corporation who was a Stockholder of record of the Corporation at the time
the notice provided for in this Section 2.11 is delivered to the Secretary, who
is entitled to vote for the election of Directors at the meeting and who
complies with the applicable provisions of Section 2.11.4 hereof (persons
nominated in accordance with (iii) above are referred to herein as "Stockholder
nominees").
2.11.3 At any annual meeting of Stockholders, only such
business shall be conducted as shall have been properly brought before the
meeting. To be properly brought before an annual meeting of Stockholders, (i)
business must be specified in the notice of meeting (or any supplement thereto)
given by or at the direction
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of the Board, (ii) otherwise properly brought before the meeting by or at the
direction of the Board or (iii) otherwise properly brought before the meeting by
a Stockholder who was a Stockholder of record of the Corporation at the time the
notice provided for in this Section 2.11 is delivered to the Secretary, who is
entitled to vote at the meeting and who complies with the applicable provisions
of Section 2.11.4 hereof (business brought before the meeting in accordance with
(iii) above is referred to as "Stockholder business").
2.11.4 In addition to any other applicable requirements, (i)
all nominations of Stockholder nominees must be made by timely written notice
given by or on behalf of a Stockholder of record of the Corporation (the "Notice
of Nomination") and (ii) all proposals of Stockholder business must be made by
timely written notice given by or on behalf of a Stockholder of record of the
Corporation (the "Notice of Business"). To be timely, the Notice of Nomination
or the Notice of Business, as the case may be, must be delivered personally to,
or mailed to, and received at the Office of the Corporation, addressed to the
attention of the Secretary, (i) in the case of the nomination of a person for
election to the Board, or business to be conducted, at an annual meeting of
Stockholders, not less than sixty (60) days nor more than one hundred thirty
(130) days prior to the first anniversary of the date on which the Corporation
first mailed its proxy materials for the prior year's annual meeting of
Stockholders, except in the case where the Corporation did not mail proxy
materials in connection with the prior year's annual meeting of Stockholders, in
which case a Notice of Nomination or Notice of Business, as the case may be,
shall be delivered not less than sixty (60) nor more than one hundred thirty
(130) days prior to the first anniversary date of the prior year's annual
meeting of Stockholders, regardless of any postponement, deferral or adjournment
of that meeting to
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a later date, or (ii) in the case of the nomination of a person for election to
the Board at a special meeting of Stockholders, not less than the later of (a)
ninety (90) nor more than one hundred thirty (130) days prior to such special
meeting or (b) the tenth day following the day on which the notice of such
special meeting was mailed or otherwise delivered or made by Public Disclosure;
PROVIDED, HOWEVER, that in the event that the annual meeting of Stockholders is
advanced or delayed by more than thirty (30) days from the first anniversary of
the prior year's annual meeting of Stockholders or if no annual meeting was held
during the prior year, notice by the Stockholder to be timely must be received
(i) no earlier than one hundred thirty (130) days prior to such annual meeting
and no later than ninety (90) days prior to such annual meeting or (ii) no later
than ten (10) days following the day the notice of such annual meeting was
mailed or otherwise delivered or made by Public Disclosure. In no event shall
the public disclosure of an adjournment or postponement of an annual or special
meeting commence a new time period (or extend any time period) for the giving of
the Notice of Nomination or Notice of Business, as applicable.
The Notice of Nomination shall set forth (i) the name and record
address of the Stockholder and/or beneficial owner proposing to make
nominations, as they appear on the Corporation's books, (ii) the class and
number of shares of stock held of record and beneficially by such Stockholder
and/or such beneficial owner, (iii) a representation that the Stockholder is a
holder of record of stock of the Corporation entitled to vote at the meeting and
intends to appear in person or by proxy at the meeting to propose such
nomination, (iv) all information regarding each Stockholder nominee that would
be required to be set forth in a definitive proxy statement filed with the
Securities
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and Exchange Commission pursuant to Section 14 of the Securities Exchange Act of
1934, as amended, or any successor statute thereto (the "Exchange Act"), and the
written consent of each such Stockholder nominee to being named in a proxy
statement as a nominee and to serve if elected and (v) all other information
that would be required to be filed with the Securities and Exchange Commission
if the person proposing such nominations were a participant in a solicitation
subject to Section 14 of the Exchange Act or any successor statute thereto. The
Corporation may require any Stockholder nominee to furnish such other
information as it may reasonably require to determine the eligibility of such
Stockholder nominee to serve as a Director of the Corporation. The chairman of
the meeting shall, if the facts warrant, determine and declare to the meeting
that any proposed nomination of a Stockholder nominee was not made in accordance
with the foregoing procedures and, if he should so determine, he shall so
declare to the meeting and the defective nomination shall be disregarded.
The Notice of Business shall set forth (i) the name and record address
of the Stockholder and/or beneficial owner proposing such Stockholder business,
as they appear on the Corporation's books, (ii) the class and number of shares
of stock held of record and beneficially by such Stockholder and/or such
beneficial owner, (iii) a representation that the Stockholder is a holder of
record of stock of the Corporation entitled to vote at the meeting and intends
to appear in person or by proxy at the meeting to propose such business, (iv) a
brief description of the Stockholder business desired to be brought before the
annual meeting, the text of the proposal (including the text of any resolutions
proposed for consideration) and, in the event that such business includes a
proposal to amend the By-laws, the language of the proposed amendment, and the
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reasons for conducting such Stockholder business at the annual meeting, (v) any
material interest of the Stockholder and/or beneficial owner in such Stockholder
business and (vi) all other information that would be required to be filed with
the Securities and Exchange Commission if the person proposing such Stockholder
business were a participant in a solicitation subject to Section 14 of the
Exchange Act. Notwithstanding anything in these By-laws to the contrary, no
business shall be conducted at the annual meeting of Stockholders except in
accordance with the procedures set forth in this Section 2.11.4; PROVIDED,
however, that nothing in this Section 2.11.4 shall be deemed to preclude
discussion by any Stockholder of any business properly brought before the annual
meeting in accordance with said procedure. Nevertheless, it is understood that
Stockholder business may be excluded if the exclusion of such Stockholder
business is permitted by the applicable regulations of the Securities and
Exchange Commission. The chairman of the 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 procedures and, if he should
so determine, he shall declare to the meeting and any such business not properly
brought before the meeting shall not be transacted.
Notwithstanding the foregoing provisions of this Section 2.11, if the
Stockholder (or a qualified representative of the Stockholder) does not appear
at the annual or special meeting of Stockholders to present the Stockholder
nomination or the Stockholder business, as applicable, such nomination shall be
disregarded and such business shall not be transacted, notwithstanding that
proxies in respect of such vote may have been received by the Corporation.
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For purposes of this Section 2.11, "Public Disclosure" shall be deemed
to be first made when disclosure of such date of the annual or special meeting
of Stockholders, as the case may be, is first made in a press release reported
by the Dow Jones News Services, Associated Press or comparable national news
service, or in a document publicly filed by the Corporation with the Securities
and Exchange Commission pursuant to Sections 13, 14 or 15(d) of the Exchange Act
or any successor statute thereto.
Notwithstanding the foregoing, a Stockholder shall also comply with all
applicable requirements of the Exchange Act and the rules and regulations
thereunder with respect to the matters set forth in this Section 2.11. Nothing
in this Section 2.11 shall be deemed to affect any rights of the holders of any
series of preferred stock of the Corporation pursuant to any applicable
provision of the Certificate of Incorporation.
2.12 ORDER OF BUSINESS. The order of business at all meetings of
Stockholders shall be as determined by the person presiding over the meeting.
2.13 WRITTEN CONSENT OF STOCKHOLDERS WITHOUT A MEETING. Unless
otherwise provided in the Certificate of Incorporation, any action required by
the General Corporation Law 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 or consents in writing, setting forth the action so taken,
shall be signed by 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 thereon were present and voted
and shall be delivered (by hand or by certified or registered mail, return
receipt requested) to the Corporation by delivery to its registered office in
the State of
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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. Every written consent shall bear the date of
signature of each Stockholder who signs the consent and no written consent shall
be effective to take the corporate action referred to therein unless, within 60
days of the earliest dated consent delivered in the manner required by this
Section 2.13, written consents signed by a sufficient number of holders to take
action are delivered to the Corporation as aforesaid. Prompt notice of the
taking of the corporate action without a meeting by less than unanimous written
consent shall, to the extent required by applicable law, be given to those
Stockholders who have not consented in writing, and who, if the action had been
taken at a meeting, would have been entitled to notice of the meeting if the
record date for such meeting had been the date that written consents signed by a
sufficient number of holders to take the action were delivered to the
Corporation.
ARTICLE 3
DIRECTORS
3.1 GENERAL POWERS. Except as otherwise provided in the
Certificate of Incorporation, the business and affairs of the Corporation shall
be managed by or under the direction of the Board. The Board may adopt such
rules and regulations, not inconsistent with the Certificate of Incorporation or
these By-laws or applicable law, as it may deem proper for the conduct of its
meetings and the management of the Corporation.
3.2 NUMBER; QUALIFICATION; TERM OF OFFICE. Except as otherwise
provided in the Certificate of Incorporation, the Board shall consist of not
less than 3 nor more than 12 members, the number thereof to be determined from
time to time by
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resolution of the Board. Directors need not be Stockholders. Each Director shall
hold office until a successor is duly elected and qualified or until the
Director's earlier death, disqualification, resignation or removal.
3.3 NEWLY CREATED DIRECTORSHIPS AND VACANCIES. Unless otherwise
provided by applicable law or the Certificate of Incorporation, and subject to
the rights of holders of any series of Preferred Stock then outstanding, any
newly created directorships resulting from an increase in the authorized number
of Directors and vacancies occurring in the Board for any cause, may be filled
by the affirmative votes of a majority of the remaining members of the Board,
although less than a quorum, or by a sole remaining Director. A Director so
elected shall be elected to hold office until the expiration of the term of
office of the Director whom he or she has replaced or until a successor is
elected and qualified, or until the Director's earlier death, disqualification,
resignation or removal.
3.4 RESIGNATION. Any Director may resign at any time by notice
given in writing or by electronic transmission to the Corporation. Such
resignation shall take effect at the time therein specified, and, unless
otherwise specified in such resignation, the acceptance of such resignation
shall not be necessary to make it effective.
3.5 REGULAR MEETINGS. Regular meetings of the Board may be held
without notice at such times and at such places within or without the State of
Delaware as may be determined from time to time by resolution of the Board.
3.6 SPECIAL MEETINGS. Special meetings of the Board may be held at
such times and at such places within or without the State of Delaware whenever
called by the Chairman, the President or the Secretary or by any two or more
Directors then serving
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as Directors on at least 24 hours' notice to each Director given by one of the
means specified in Section 3.9 hereof other than by mail, or on at least three
days' notice if given by mail. Special meetings shall be called by the Chairman,
President or Secretary in like manner and on like notice on the written request
of any two or more of the Directors then serving as Directors.
3.7 TELEPHONE MEETINGS. Directors or members of any committee
designated by the Board may participate in a meeting of the Board 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 in a meeting pursuant to this Section 3.7 shall constitute
presence in person at such meeting.
3.8 ADJOURNED MEETINGS. A majority of the Directors present at any
meeting of the Board, including an adjourned meeting, whether or not a quorum is
present, may adjourn such meeting to another time and place. At least 24 hours'
notice of any adjourned meeting of the Board shall be given to each Director
whether or not present at the time of the adjournment, if such notice shall be
given by one of the means specified in Section 3.9 hereof other than by mail, or
at least three days' notice if by mail. Any business may be transacted at an
adjourned meeting that might have been transacted at the meeting as originally
called.
3.9 NOTICE PROCEDURE. Subject to Sections 3.6 and 3.10 hereof,
whenever, under applicable law, the Certificate of Incorporation or these
By-laws, notice is required to be given to any Director, such notice shall be
deemed given effectively if given in person or by telephone, by mail addressed
to such Director at such Director's address as it appears on the records of the
Corporation, with postage thereon prepaid, or
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by telegram, telecopy or, if consented to by the Director to whom notice is
given, by other means of electronic transmission.
3.10 WAIVER OF NOTICE. Whenever the giving of any notice to
Directors is required by applicable law, the Certificate of Incorporation or
these By-laws, a waiver thereof, given by the Director entitled to said notice,
whether before or after the event as to which such notice is required, shall be
deemed equivalent to notice. Attendance by a Director at a meeting shall
constitute a waiver of notice of such meeting except when the Director attends a
meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business on the ground that the meeting has not been
lawfully called or convened. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the Directors or a committee of
Directors need be specified in any waiver of notice unless so required by
applicable law, the Certificate of Incorporation or these By-laws.
3.11 ORGANIZATION. At each meeting of the Board, the Chairman, or
in the absence of the Chairman, the President, or in the absence of the
President, a chairman chosen by a majority of the Directors present, shall
preside. The Secretary shall act as secretary at each meeting of the Board. In
case the Secretary shall be absent from any meeting of the Board, an Assistant
Secretary shall perform the duties of secretary at such meeting; and in the
absence from any such meeting of the Secretary and all Assistant Secretaries,
the person presiding at the meeting may appoint any person to act as secretary
of the meeting.
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3.12 QUORUM OF DIRECTORS. The presence in person of a majority of
the Entire Board shall be necessary and sufficient to constitute a quorum for
the transaction of business at any meeting of the Board.
3.13 ACTION BY MAJORITY VOTE. Except as otherwise expressly
required by applicable law, the Certificate of Incorporation or these By-laws,
the vote of a majority of the Directors present at a meeting at which a quorum
is present shall be the act of the Board.
3.14 ACTION WITHOUT MEETING. Unless otherwise restricted by the
Certificate of Incorporation or these By-laws, any action required or permitted
to be taken at any meeting of the Board or of any committee thereof may be taken
without a meeting if all Directors or members of such committee, as the case may
be, consent thereto in writing or by electronic transmission, and the writing or
writings or electronic transmission or transmissions are filed with the minutes
of proceedings of the Board or committee.
ARTICLE 4
COMMITTEES OF THE BOARD
The Board may, by resolution, designate one or more committees, each
committee to consist of one or more of the Directors of the Corporation. The
Board may designate one or more Directors as alternate members of any committee,
who may replace any absent or disqualified member at any meeting of such
committee. If a member of a committee shall be absent from any meeting, or
disqualified from voting thereat, the remaining member or members present at the
meeting and not disqualified from voting, whether or not such member or members
constitute a quorum, may, by a
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unanimous vote, appoint another member of the Board to act at the meeting in the
place of any such absent or disqualified member. Any such committee, to the
extent permitted by applicable law and to the extent provided in the resolution
of the Board designating such committee, shall have and may exercise all the
powers and authority of the Board 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. Unless otherwise specified in the resolution
of the Board designating a committee, at all meetings of such committee, a
majority of the then authorized members of the committee shall constitute a
quorum for the transaction of business, and the vote of a majority of the
members of the committee present at any meeting at which there is a quorum shall
be the act of the committee. Each committee shall keep regular minutes of its
meetings. Unless the Board otherwise provides, each committee designated by the
Board may make, alter and repeal rules for the conduct of its business. In the
absence of such rules each committee shall conduct its business in the same
manner as the Board conducts its business pursuant to Article 3 of these
By-laws.
ARTICLE 5
OFFICERS
5.1 POSITIONS. The officers of the Corporation shall be a
President, a Secretary, a Treasurer and such other officers as the Board may
elect, including a Chairman, one or more Vice Presidents and one or more
Assistant Secretaries and Assistant Treasurers, who shall exercise such powers
and perform such duties as shall be determined from time to time by resolution
of the Board. The Board may elect one or more Vice Presidents as Executive Vice
Presidents and may use descriptive words or
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phrases to designate the standing, seniority or areas of special competence of
the Vice Presidents elected or appointed by it. Any number of offices may be
held by the same person unless the Certificate of Incorporation or these By-laws
otherwise provide.
5.2 ELECTION. The officers of the Corporation shall be elected by
the Board at its annual meeting or at such other time or times as the Board
shall determine.
5.3 TERM OF OFFICE. Each officer of the Corporation shall hold
office for the term for which he or she is elected and until such officer's
successor is elected and qualifies or until such officer's earlier death,
resignation or removal. Any officer may resign at any time upon written notice
to the Corporation. Such resignation shall take effect at the date of receipt of
such notice or at such later time as is therein specified, and, unless otherwise
specified, the acceptance of such resignation shall not be necessary to make it
effective. The resignation of an officer shall be without prejudice to the
contract rights of the Corporation, if any. Any officer may be removed at any
time, with or without cause by the Board. Any vacancy occurring in any office of
the Corporation may be filled by the Board. The removal of an officer with or
without cause shall be without prejudice to the officer's contract rights, if
any. The election or appointment of an officer shall not of itself create
contract rights.
5.4 FIDELITY BONDS. The Corporation may secure the fidelity of any
or all of its officers or agents by bond or otherwise.
5.5 CHAIRMAN. The Chairman, if one shall have been appointed,
shall preside at all meetings of the Board and shall exercise such powers and
perform such other duties as shall be determined from time to time by resolution
of the Board.
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5.6 PRESIDENT. The President shall be the Chief Executive Officer
of the Corporation and shall have general supervision over the business of the
Corporation, subject, however, to the control of the Board and of any duly
authorized committee of the Board. The President shall preside at all meetings
of the Stockholders and at all meetings of the Board at which the Chairman (if
there be one) is not present. The President may sign and execute in the name of
the Corporation deeds, mortgages, bonds, contracts and other instruments, except
in cases in which the signing and execution thereof shall be expressly delegated
by resolution of the Board or by these By-laws to some other officer or agent of
the Corporation, or shall be required by applicable law otherwise to be signed
or executed and, in general, the President shall perform all duties incident to
the office of President of a corporation and such other duties as may from time
to time be assigned to the President by resolution of the Board.
5.7 VICE PRESIDENTS. At the request of the President, or, in the
President's absence, at the request of the Board, the Vice Presidents shall (in
such order as may be designated by the Board, or, in the absence of any such
designation, in order of seniority based on age) perform all of the duties of
the President and, in so performing, shall have all the powers of, and be
subject to all restrictions upon, the President. Any Vice President may sign and
execute in the name of the Corporation deeds, mortgages, bonds, contracts or
other instruments, except in cases in which the signing and execution thereof
shall be expressly delegated by resolution of the Board or by these By-laws to
some other officer or agent of the Corporation, or shall be required by
applicable law otherwise to be signed or executed, and each Vice President shall
perform such other
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duties as from time to time may be assigned to such Vice President by resolution
of the Board or by the President.
5.8 SECRETARY. The Secretary shall attend all meetings of the
Board and of the Stockholders and shall record all the proceedings of the
meetings of the Board and of the Stockholders in a book to be kept for that
purpose, and shall perform like duties for committees of the Board, when
required. The Secretary shall give, or cause to be given, notice of all special
meetings of the Board and of the Stockholders and shall perform such other
duties as may be prescribed by the Board or by the President, under whose
supervision the Secretary shall be. The Secretary shall have custody of the
corporate seal of the Corporation, and the Secretary, or an Assistant Secretary,
shall have authority to affix the same on any instrument requiring it, and when
so affixed, the seal may be attested by the signature of the Secretary or by the
signature of such Assistant Secretary. The Board may, by resolution, give
general authority to any other officer to affix the seal of the Corporation and
to attest the same by such officer's signature. The Secretary or an Assistant
Secretary may also attest all instruments signed by the President or any Vice
President. The Secretary shall have charge of all the books, records and papers
of the Corporation relating to its organization and management, shall see that
the reports, statements and other documents required by applicable law are
properly kept and filed and, in general, shall perform all duties incident to
the office of Secretary of a corporation and such other duties as may from time
to time be assigned to the Secretary by resolution of the Board or by the
President.
5.9 TREASURER. The Treasurer shall have charge and custody of, and
be responsible for, all funds, securities and notes of the Corporation; receive
and give
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receipts for moneys due and payable to the Corporation from any sources
whatsoever; deposit all such moneys and valuable effects in the name and to the
credit of the Corporation in such depositaries as may be designated by the
Board; against proper vouchers, cause such funds to be disbursed by checks or
drafts on the authorized depositaries of the Corporation signed in such manner
as shall be determined by the Board and be responsible for the accuracy of the
amounts of all moneys so disbursed; regularly enter or cause to be entered in
books or other records maintained for the purpose full and adequate account of
all moneys received or paid for the account of the Corporation; have the right
to require from time to time reports or statements giving such information as
the Treasurer may desire with respect to any and all financial transactions of
the Corporation from the officers or agents transacting the same; render to the
President or the Board, whenever the President or the Board shall require the
Treasurer so to do, an account of the financial condition of the Corporation and
of all financial transactions of the Corporation; disburse the funds of the
Corporation as ordered by the Board; and, in general, perform all duties
incident to the office of Treasurer of a corporation and such other duties as
may from time to time be assigned to the Treasurer by resolution of the Board or
by the President.
5.10 ASSISTANT SECRETARIES AND ASSISTANT TREASURERS. Assistant
Secretaries and Assistant Treasurers shall perform such duties as shall be
assigned to them by the Secretary or by the Treasurer, respectively, or by
resolution of the Board or by the President.
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ARTICLE 6
GENERAL PROVISIONS
6.1 CERTIFICATES REPRESENTING SHARES. Every holder of stock shall
be entitled to have a certificate signed by or in the name of the Corporation by
the Chairman, if any, or the President or a Vice President and by the Secretary
or an Assistant Secretary or the Treasurer or an Assistant Treasurer, certifying
the number of shares owned by such Stockholder in the Corporation. Any or all of
the signatures upon a certificate may be facsimiles. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been
placed upon any certificate shall have ceased to be such officer, transfer agent
or registrar before such certificate is issued, such certificate may be issued
by the Corporation with the same effect as if such person were such officer,
transfer agent or registrar at the date of issue.
6.2 TRANSFER AND REGISTRY AGENTS. The Corporation may from time to
time maintain one or more transfer offices or agents and registry offices or
agents at such place or places as may be determined from time to time by the
Board.
6.3 LOST, STOLEN OR DESTROYED CERTIFICATES. The Corporation may
issue a new certificate of stock in the place of any certificate theretofore
issued by it, alleged to have been lost, stolen or destroyed, and the
Corporation may require the owner of the lost, stolen or destroyed certificate,
or his legal representative, to give the Corporation a bond sufficient to
indemnify it against any claim that may be made against it on account of the
alleged loss, theft or destruction of any such certificate or the issuance of
such new certificate.
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6.4 FORM OF RECORDS. Any records maintained by the Corporation in
the regular course of its business, including its stock ledger, books of
account, and minute books, may be kept on, or by means of, or be in the form of,
any information storage device or method, provided that the records so kept can
be converted into clearly legible paper form within a reasonable time. The
Corporation shall so convert any records so kept upon the request of any person
entitled to inspect such records pursuant to applicable law.
6.5 SEAL. The corporate seal shall have the name of the
Corporation inscribed thereon and shall be in such form as may be approved from
time to time by the Board. The seal may be used by causing it or a facsimile
thereof to be impressed or affixed or otherwise reproduced.
6.6 FISCAL YEAR. The fiscal year of the Corporation shall be
determined by resolution of the Board.
6.7 AMENDMENTS. These By-laws may be altered, amended or repealed
and new By-laws may be adopted either (i) by the Board or (ii) by the
affirmative vote of a majority of the voting power of shares of stock present in
person or represented by proxy and entitled to vote thereon. The power of the
Board to alter, amend or repeal By-laws or to adopt new By-laws shall not divest
or limit the power of Stockholders to alter, amend or repeal By-laws or to adopt
new By-laws.
Dated: February 10, 2003