EXHIBIT 3.2
AMENDED AND RESTATED BYLAWS
OF RAINWIRE PARTNERS, INC.
These amended and restated Bylaws of Rainwire Partners, Inc. reflect
the name change of the Corporation from Envirometrics, Inc. to Rainwire
Partners, Inc. All other provisions remain the same as the Amended and Restated
Bylaws adopted in 1993.
ARTICLE I
OFFICES
SECTION 1.1. LOCATION. The address of the registered office of the
Corporation in the State of Delaware and the name of the registered agent at
such address shall be as specified in the Certificate of Incorporation or, if
subsequently changed, as specified in the most recent Certificate of Change
filed pursuant to law. The Corporation may also have other offices at such
places within or without the State of Delaware as the Board of Directors may
from time to time designate or the business of the Corporation may require.
SECTION 1.2. CHANGE OF LOCATION. In the manner permitted by law,
the Board of Directors or the registered agent may change the address of the
Corporation's registered office in the State of Delaware and the Board of
Directors may make, revoke or change the designation of the registered agent.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 2.1. ANNUAL MEETING. The annual meeting of the
stockholders of the Corporation for the election of Directors and for the
transaction of such other business as may properly come before the meeting
shall be held at the registered office of the Corporation, or at such other
place within or without the State of Delaware as the Board of Directors may fix
by resolution or as set forth in the notice of the meeting. In the event that
the Board of Directors shall not otherwise fix the time, date, and place of
meeting, the annual meeting shall be held at the registered office of the
Corporation at 10 o'clock a.m. local time on the first Tuesday after the first
Wednesday in May of each year, commencing with the year 1992, but if such a
date is a legal holiday, then on the next succeeding business day.
SECTION 2.2. SPECIAL MEETING. Special meetings of stockholders,
unless otherwise prescribed by law, may not be called at any time by the
stockholders but may be at any time by the Chairman of the Board, by the
President or by order of the Board of Directors. Special meetings of
stockholders prescribed by law for the election of Directors shall be called by
the Board of Directors, the Chairman of the Board, the President, or the
Secretary whenever required to do so Pursuant to applicable law. Special
meetings of stockholders shall be held at such time
1
and such place, within or without the State of Delaware, as shall be designated
in the notice of meeting.
SECTION 2.3. LIST OF STOCKHOLDERS ENTITLED TO VOTE. The officer
who has charge of the stock ledger of the corporation shall prepare and make,
or cause to be prepared and made, at least ten days before every meeting of
stockholders, a complete list, based upon the record date for such meeting
determined pursuant to Section 5.8, 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, for
any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten days prior to the meeting, either at a place (other than
the meeting place) within the city where the meeting is to be held, and the
place where the list of stockholders is located shall be identified in the
notice of the meeting, or, if such place shall not be identified in the notice
of the meeting, the list of stockholders shall be kept at the place where the
meeting is to be held. The list also shall be produced and kept at the time and
place of the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
The stock ledger shall be the only evidence as to who are the
stockholders entitled to examine the stock ledger, the list of stockholders
entitled to vote at any meeting, or to inspect the books of the Corporation, or
to vote in person or by proxy at any meeting of stockholders.
SECTION 2.4. NOTICE OF MEETINGS. Written notice of each annual and
special meeting of stockholders, other than any meeting the giving of notice of
which is otherwise prescribed by law, stating the place, date and hour of the
meeting, and, in the case of a special meeting, the purpose or purposes for
which the meeting is called, shall be delivered or mailed, in writing, at least
ten but not more than sixty days before the date of such meeting, to each
stockholder entitled to vote thereat. If mailed, such notice shall be deposited
in the United States mail, postage prepaid, directed to such stockholder at his
address as the same appears on the records of the Corporation. An affidavit of
the Secretary, an Assistant Secretary or the transfer agent of the Corporation
that notice has been duly given shall be evidence of the facts stated therein.
SECTION 2.5. ADJOURNED MEETINGS AND NOTICE THEREOF. Any meeting of
stockholders may be adjourned to another time or place in the manner provided
below, and the Corporation may transact at any adjourned meeting any business
which might have been transacted at the original meeting. 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, unless (a) any adjournment or
series of adjournments causes the original meeting to be adjourned for more
than thirty days after the date originally fixed there, or (b) a new record
date is fixed for the adjourned meeting. If notice of an adjourned meeting is
given, such notice shall be given to each stockholder of record entitled to
vote at the adjourned meeting in the manner prescribed in Section 2.4 for the
giving of notice of meetings. A meeting may be adjourned to another time or
place, or both, by the affirmative vote of the holders of a majority of the
shares present or represented by proxy at the meeting (whether or not
constituting a quorum), and, in the absence of a quorum, the meeting may be
adjourned from one day to the next by the presiding officer of the meeting.
2
SECTION 2.6. QUORUM. At any meeting of stockholders, except as
otherwise expressly required by law or by the Certificate of Incorporation, the
holders of record of at least one-third of the outstanding shares of capital
stock entitled to vote or act at such meeting shall be present or represented
by proxy in order to constitute a quorum for the transaction of any business,
but less than a quorum shall have power to adjourn any meeting until a quorum
shall be present when a quorum is once present to organize a meeting, the
quorum cannot be destroyed by the subsequent withdrawal or revocation of the
proxy of any stockholder. Shares of capital stock owned by the Corporation or
by another corporation, if a majority of the shares of such other corporation
entitled to vote in the election of Directors is held by the Corporation, shall
not be counted for quorum purposes or entitled to vote.
Where a separate vote by a class or classes is required by
law, the Certificate of Incorporation or these Bylaws, one third of the
outstanding shares of such class or classes, present in person or represented
by proxy, shall constitute a quorum entitled to take action with respect to
that vote on that matter, and the affirmative vote of the majority of shares of
such class or classes present in person or represented by proxy at the meeting
shall be the act of such class.
SECTION 2.7. VOTING. At any meeting of stockholders, each
stockholder holding, as of the record date, shares of stock entitled to be
voted on any matter at such meeting shall have one vote on each such matter
submitted to vote at such meeting for each such share of stock held by such
stockholder, as of the record date, as shown by the list of stockholders
entitled to vote at the meeting, unless the Certificate of Incorporation
provides for more or less than one vote for any share, on any matter, in which
case every reference in these Bylaws to a majority or other proportion of stock
shall refer to such majority or other proportion of the votes of such stock.
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 him by proxy, provided that no
proxy shall be voted or acted upon after three years from its date, unless the
proxy provides for a longer period. A duly executed proxy shall be irrevocable
if it states that it is irrevocable and if, and only so long as, it is coupled
with an interest, whether in the stock itself or in the Corporation generally,
sufficient in law to support an irrevocable power.
The Board of Directors, the Chairman of the Board, the
President, or the person presiding at a meeting of stockholders may appoint one
or more persons to act as inspectors of voting at any meeting with respect to
any matter to be submitted to a vote of stockholders at such meeting, with such
powers and duties, not inconsistent with applicable law, as may be appropriate.
SECTION 2.8. ACTION BY CONSENT OF STOCKHOLDERS. Unless otherwise
provided in the Certificate of Incorporation, whenever any action by the
stockholders at a meeting thereof is required or permitted by law, the
Certificate of Incorporation, or these Bylaws, such action 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
the 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. Prompt notice of the
taking of such action without a meeting and by less than unanimous written
consent shall be given to those stockholders who have not consented in writing.
3
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 sixty
days of the earliest dated consent delivered in the manner required by this
Section 2.8 to the Corporation, written consents signed by a sufficient number
of stockholders to take action are delivered to the Corporation by delivery to
its registered office in the State of 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. Delivery made to
the Corporation's registered office shall be by hand or by certified or
registered mail, return receipt requested.
ARTICLE III
BOARD OF DIRECTORS
SECTION 3.1. GENERAL POWERS. The property, business and affairs of
the Corporation shall be managed by or under the direction of a Board of
Directors. The Board of Directors may exercise all such powers of the
Corporation and have such authority and do all such lawful acts and things as
are permitted by law, the Certificate of Incorporation or these Bylaws.
SECTION 3.2. NUMBER OF DIRECTORS. The Board of Directors of the
Corporation shall consist of one or more members; provided, however, that in no
event shall the number of the members of the Board of Directors exceed ten.
Subject to the first sentence of this Section 3.2, the exact number of
Directors which shall constitute the whole Board of Directors shall be fixed
from time to time by resolution adopted by a majority of the whole Board of
Directors. Until the number of Directors has been so fixed by the Board of
Directors, the number of Directors constituting the whole Board of Directors
shall be six. Subject to the first sentence of this Section 3.2, after fixing
the number of Directors constituting the whole Board of Directors, the Board of
Directors may, by resolution adopted by a majority of the whole Board of
Directors, from time to time change the number of Directors constituting the
whole Board of Directors.
SECTION 3.3. QUALIFICATION. Directors need not be stockholders of
the corporation. Directors who willfully neglect or refuse to produce a list of
stockholders entitled to vote at and meeting for the election of Directors
shall be ineligible for election to any office at such meeting.
SECTION 3.4. ELECTION. Except as otherwise provided by law, the
Certificate of Incorporation or these Bylaws, after the first meeting of the
Corporation at which Directors are elected, Directors of the Corporation shall
be elected in each year at the annual meeting of stockholders, or at a special
meeting in lieu of the annual meeting called for such purpose, by a plurality
of votes cast at such meeting. The voting on Directors at any such meeting
shall be by written ballot unless otherwise provided in the Certificate of
Incorporation. At any such meeting, nominations for the office of Director may
be made from the floor by any shareholder entitled to vote for the election of
Directors at such meeting; provided, however, that such nominations may be made
from the floor only if written notice of such proposed nominations
4
(including the name or names of the person or persons proposed to be nominated)
is given to the Corporation's Secretary, at the Corporation's principal office,
not less than thirty days before the meeting at which the proposed nominations
are to be made.
SECTION 3.5. TERM. Each Director shall hold office until his
successor is duly elected and qualified, except in the event of the earlier
termination of his term of office by reason of death, resignation, removal or
other reason.
SECTION 3.6. RESIGNATION AND REMOVAL. Any Director may resign at
any time upon written notice to the Board of Directors, the Chairman of the
Board, the President or the Secretary. The resignation of any Director shall
take effect upon receipt of notice thereof or at such later time as shall be
specified in such notice, and unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
Any Director or the entire Board of Directors may be removed,
with or without cause, by the holders of a majority of the shares of capital
stock then entitled to vote at an election of Directors, except as otherwise
provided by applicable law.
SECTION 3.7. VACANCIES. Vacancies in the Board of Directors and
newly created Directorships resulting from any increase in the authorized
number of Directors shall be filled by a majority of the Directors then in
office, though less than a quorum, or by a sole remaining Director.
If one or more Directors shall resign from the Board of
Directors effective at a future date, a majority of the Directors then in
office shall have power to fill such vacancy or vacancies, the vote thereon to
take effect and the vacancy to be filled when such resignation or resignations
shall become effective, and each Director so chosen shall hold office as
provided in this Section 3.7 in the filling of other vacancies.
Each Director chosen to fill a vacancy on the Board of
Directors shall hold office until the next annual election of Directors and
until his successor shall be elected and qualified or until his earlier
resignation or removal.
SECTION 3.8. QUORUM AND VOTING. Unless the Certificate of
Incorporation provides otherwise, at all meetings of the Board of Directors, a
majority of the total number of Directors shall be present to constitute a
quorum for the transaction of business. A Director interested in a contract or
transaction may be counted in determining the presence of a quorum at a meeting
of the Board of Directors which authorizes the contract or transaction. In the
absence of a quorum, a majority of the Directors present may adjourn the
meeting until a quorum shall be present.
Unless the Certificate of Incorporation provides otherwise,
members of the Board of Directors or any committee designated by the Board of
Directors may participate in a meeting of the Board of Directors or such
committee by means of a conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in such a meeting shall constitute presence in
person at such meeting.
5
The vote of the majority of the Directors present at a
meeting at which a quorum is present shall be the act of the Board of Directors
unless the Certificate of Incorporation or these Bylaws shall require a vote of
a greater number.
SECTION 3.9. REGULATIONS. The Board of Directors may adopt such
rules and regulations for the conduct of the business and management of the
Corporation, not inconsistent with law or the Certificate of Incorporation or
these Bylaws, as the Board of Directors may deem proper. The Board of Directors
may hold its meetings and cause the books and records of the Corporation to be
kept at such place or places within or without the State of Delaware as the
Board of Directors may from time to time determine. A member of the Board of
Directors, or a member of any committee designated by the Board of Directors
shall, in the performance of his duties,, be fully protected in relying in good
faith upon the records of the Corporation and upon such information, opinions,
reports or statements presented to the Corporation by any of the Corporation's
officers or employees, by committees of the Board of Directors, or by any other
person as to matters the member reasonably believes are within such other
personas professional or expert competence and who has been selected with
reasonable care by or on behalf of the Corporation.
SECTION 3.10. ANNUAL MEETING OF BOARD OF DIRECTORS. An annual
meeting of the Board of Directors shall be called and held for the purpose of
organization, election of officers and transaction of any other business. If
such meeting is held promptly after and at the place specified for the annual
meeting of stockholders, no notice of the annual meeting of the Board of
Directors need be given. Otherwise, such annual meeting shall be held at such
time (not more than thirty days after the annual meeting of stockholders) and
place as many be specified in a notice of the meeting.
SECTION 3.11. REGULAR MEETING. Regular meetings of the Board of
Directors shall be held at the time and place, within or without the State of
Delaware,, as shall from time to time be determined by the Board of Directors.
After there has been such determination and notice thereof has been given to
each member of the Board of Directors, no further notice shall be required for
any such regular meeting. Except as otherwise provided by law, any business may
be transacted at any regular meeting.
SECTION 3.12. SPECIAL MEETINGS. Special meetings of the Board of
Directors may, unless otherwise prescribed by law, be called from time to time
by the Chairman of the Board or the President, and shall be called by the
Chairman of the Board, the President or the Secretary upon the written request
of a majority of the whole Board of Directors directed to the Chairman of the
Board, the President or the Secretary. Except as provided below, notice of any
special meeting of the Board of Directors, stating the time, place and purpose
of such special meeting, shall be given to each Director.
SECTION 3.13. NOTICE OF MEETINGS; WAIVER OF NOTICE. Notice of any
meeting of the Board of Directors shall be deemed to be duly given to a
Director (a) if mailed to such Director addressed to him at his address as it
appears upon the books of the corporation, or at the address last made known in
writing to the Corporation by such Director as the address to which such
6
notices are to be sent, at least five days before the day on which such meeting
is to be held, or (b) if sent to him at such address by telegraph, cable, radio
or wireless not later than the day before the day on which such meeting is to
be held, or (c) if delivered to him personally or orally, by telephone or
otherwise, not later than the day before the day on which such meeting is to be
held. Each such notice shall state the time and place of the meeting and the
purposes thereof.
Notice of any meeting of the Board of Directors need not be
given to any Director if waived by him in writing (or by telegram, cable, radio
or wireless and confirmed in writing) whether before or after the holding of
such meeting, or if such Director is present at such meeting. Any meeting of
the Board of Directors shall be a duly constituted meeting without any notice
thereof having been given if all Directors then in office shall be present
thereat.
SECTION 3.14. COMMITTEES OF DIRECTORS. The Board of Directors may,
by resolution or resolutions passed by a majority of the whole Board of
Directors designate one or more committees, each committee to consist of one or
more of the Directors of the Corporation.
Except as hereinafter provided, vacancies in membership of
any committee shall be filled by the vote of a majority of the whole Board of
Directors. The Board of Directors may designate one or more Directors as
alternate members of any committee, who may replace any absent or disqualified
member at any meeting of the committee. In the absence or disqualification of
any member of a committee (arid his alternate appointed pursuant to the
immediately preceding sentence, if any), the member or members thereof present
at any meeting and not disqualified from voting, whether or not he or they
constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any such absent or disqualified
member. Members of a committee shall hold office for such period as may be
fixed by a resolution adopted by a majority of the whole Board of Directors,
subject, however, to removal at any time by the vote of a majority of the whole
Board of Directors.
SECTION 3.15. POWERS AND DUTIES OF COMMITTEES. Any committee, to
the extent provided in the resolution or resolutions creating such committee,
shall have and may exercise all the powers and authority of the Board of
Directors in the management of the business and affairs of the Corporation, and
may authorize the seal of the Corporation to be affixed to all papers which may
require it. No such committee shall have the power or authority with regard to
amending the Certificate of Incorporation adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease or exchange of
all or substantially all of the Corporation's property and assets, recommending
to the stockholders a dissolution of the Corporation or a revocation of a
dissolution, or amending the Bylaws. The Board of Directors may, in the
resolution creating a committee, grant to such committee the power and
authority to declare a dividend or authorize the issuance of stock.
Each committee may adopt its own rules of procedure and may
meet at stated times or on such notice as such committee may determine. Except
as otherwise permitted by these Bylaws, each committee shall keep regular
minutes of its proceedings and report the same to the Board of Directors when
required.
7
SECTION 3.16. COMPENSATION OF DIRECTORS. Each Director shall be
entitled to receive for attendance at each meeting of the Board of Directors or
any duly constituted committee thereof which he attends, such fee as is fixed
by the Board and in connection therewith shall be reimbursed by the Corporation
for travel expenses. The fees to such Directors may be fixed in unequal amounts
among them, taking into account their respective relationships to the
Corporation in other capacities. These provisions shall not be construed to
preclude any Director from receiving compensation in serving the Corporation in
any other capacity.
SECTION 3.17. ACTION WITHOUT MEETING. Unless otherwise restricted
by the Certificate of Incorporation, 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 a written consent thereto is signed by all
members of the Board of Directors or of such committee, As the case may be, and
such written consent is filed with the minutes of proceedings of the Board of
Directors or such committee.
ARTICLE IV
OFFICERS
SECTION 4.1. PRINCIPAL OFFICERS. The principal officers of the
Corporation shall be elected by the Board of Directors and shall include a
Chairman of the Board, a President, a Secretary and a Treasurer and may, at the
discretion of the Board of Directors, also include one or more Vice Chairmen of
the Board and one or more Vice Presidents. Except as otherwise provided in the
Certificate of Incorporation or these Bylaws, one person may hold the offices
and perform the duties of any two or more of said principal offices except the
offices and duties of President and Vice President or of Chairman of the Board
or President and Secretary. None of the principal officers need be Directors of
the Corporation.
SECTION 4.2. ELECTION OF PRINCIPAL OFFICERS; TERM OF OFFICE. The
principal officers of the Corporation shall be elected annually by the Board of
Directors at such annual meeting of the Board of Directors. Failure to elect
any principal officer annually shall not dissolve the Corporation.
If the Board of Directors shall fail to fill any principal
office at an annual meeting, or if any vacancy in any principal office shall
occur, or if any principal office shall be newly created, such principal office
may be filled at any regular or special meeting of the Board of Directors.
Each principal officer shall hold office until his successor
is duly elected and qualified, or until his earlier death, resignation or
removal, provided that the terms of office of all Vice Presidents shall
terminate at any annual meeting of the Board of Directors at which the
President or any Vice President is elected.
SECTION 4.3. SUBORDINATE OFFICERS, AGENTS AND EMPLOYEES. In
addition to the principal officers, the Corporation may have one or more
Assistant Treasurers, Assistant
8
Secretaries and such other subordinate officers, agents and employees as the
Board of Directors may deem advisable, each of whom shall hold office for such
period and have such authority and perform such duties as the Board of
Directors, the Chairman of the Board, the President, or any officer designated
by the Board of Directors, may from time to time determine. The Board of
Directors at any time may appoint and remove, or may delegate to any principal
officer the power to appoint and to remove, any subordinate officer, agent or
employee of the Corporation.
SECTION 4.4. DELEGATION OF DUTIES OF OFFICERS. The Board of
Directors may delegate the duties and powers of any officer of the Corporation
to any other officer or to any Director for a specified period of time for any
reason that the Board of Directors may deem sufficient.
SECTION 4.5. REMOVAL OF OFFICERS. Any officer of the Corporation
may be removed,, with or without cause, by resolution adopted by a majority of
the Directors then in office at any regular or special meeting of the Board of
Directors or by a written consent signed by all of the Directors then in
office.
SECTION 4.6. RESIGNATIONS. Any officer may resign at any time by
giving written notice of resignation to the Board of Directors, to the Chairman
of the Board, to the President or to the Secretary. Any such resignation shall
take effect upon receipt of such notice or at any later time specified therein.
Unless otherwise specified in the notice the acceptance of a resignation shall
not be necessary to make the resignation effective.
SECTION 4.7. CHAIRMAN OF THE BOARD. The Chairman of the Board
shall preside at all meetings of stockholders and of the Board of Directors at
which he is present. The Chairman of the Board shall have such other powers and
perform such other duties as may be assigned to him from time to time by the
Board of Directors.
SECTION 4.8. PRESIDENT. The President shall, in the absence of the
Chairman of the Board, preside at all meetings of the stockholders and of the
Board of Directors at which he is present. The President shall be the Chief
Executive Officer of the Corporation and shall have general supervision over
the business and affairs of the Corporation and shall be responsible for
carrying out the policies and objectives established by the Board of Directors.
The President shall have all powers and duties usually incident to the office
of the President, except as specifically limited by a resolution of the Board
of Directors. The President shall have such other powers and perform such other
duties as may be assigned to him from time to time by the Board of Directors.
SECTION 4.9. VICE PRESIDENT. In the absence or disability of the
President or if the office of President be vacant, the Vice Presidents in the
order determined by the Board of Directors, or if no such determination has
been made, in the order of their seniority, shall perform the duties and
exercise the powers of the President, subject to the right of the Board of
Directors at any time to extend or confine such powers and duties or to assign
them to others. Any Vice President may have such additional designation in his
title as the Board of Directors may determine. The Vice Presidents shall
generally assist the President in such manner as the President shall direct.
Each Vice President shall have such other powers and perform such other duties
as may be assigned to him from time to time by the Board of Directors or-the
President.
9
SECTION 4.10. SECRETARY. The Secretary shall act as Secretary of
all meetings of stockholders and of the Board of Directors at which he is
present, shall record all the proceedings of all such meetings in a book to be
kept for that purpose, shall have supervision over the giving and service of
notices of the Corporation, and shall have supervision over the care and
custody of the records and seal of the Corporation. The Secretary shall be
empowered to affix the corporate seal to documents, the execution of which on
behalf of the Corporation under its seal is duly authorized, and when so
affixed may attest the same. The Secretary shall have all powers and duties
usually incident to the office of Secretary, except as specifically limited by
a resolution of the Board of Directors. The Secretary shall have such other
powers and perform such other duties as maybe assigned to him from time to time
by the Board of Directors or the President.
SECTION 4.11. TREASURER. The Treasurer shall report directly to the
President or such other officer as the Board of Directors may from time to time
determine and shall carry out the duties hereinafter specified under the direct
supervision of such officer. The Treasurer shall have general supervision over
the care and custody of the funds and over the receipts and disbursements of
the Corporation and shall cause the funds of the Corporation to be deposited in
the name of the Corporation in such banks or other depositories as the Board of
Directors may designate. The Treasurer shall have supervision over the care and
safekeeping of the securities of the Corporation. Subject to the first sentence
of this Section 4.11, the Treasurer shall have all powers and duties usually
incident to the office of Treasurer, except as specifically limited by a
resolution of the Board of Directors. The Treasurer shall have such other
powers and perform such other duties as may be assigned to him from time to
time by the Board of Directors or the President.
SECTION 4.12. BOND. The Board of Directors shall have power, to the
extent permitted by law, to require any officer, agent or employee of the
Corporation to give bond for the faithful discharge of his duties in such form
and with such surety or sureties as the Board of Directors may determine.
ARTICLE V
CAPITAL STOCK
SECTION 5.1. ISSUANCE OF CERTIFICATES OF STOCK. Each stockholder
of the Corporation shall be entitled to a certificate or certificates in such
form as shall be approved by the Board of Directors, certifying the number of
shares of capital stock of the corporation owned by such stockholder.
SECTION 5.2. SIGNATURES ON STOCK CERTIFICATES. Certificates for
shares of capital stock of the Corporation shall be signed by, or in the name
of the Corporation by, the Chairman of the Board, any Vice Chairman of the
Board, the President or a Vice President and by, or in the name of the
Corporation by, the Secretary, the Treasurer, an Assistant Secretary or an
Assistant Treasurer. Any of or all the signatures on the certificates may be a
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed
10
upon a 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 signer were such officer,
transfer agent or registrar at the date of issue.
SECTION 5.3. STOCK LEDGER. A record of all certificates for
capital stock issued by the Corporation shall be kept by the Secretary or any
other officer or employee of the Corporation designated by the Secretary or by
any transfer clerk or transfer agent appointed pursuant to Section 5.4 hereof.
Such record shall show the name and address of the person, firm or corporation
in which certificates for capital stock are registered, the number of shares
represented by each such certificate, the date of each such certificate, and in
case of certificates which have been canceled, the dates of cancellation
thereof.
The Corporation shall be entitled to treat the holder of
record of shares of capital stock as shown on the stock ledger as the owner
thereof and as the person entitled to receive dividends thereon, to vote such
shares and to receive notice of meetings, and for all other purposes. The
Corporation shall not be bound to recognize any equitable or other claim to or
interest in any share of capital stock on the part of any other person whether
or not the Corporation shall have express or other notice thereof.
SECTION 5.4. REGULATIONS RELATING TO TRANSFER. The Board of
Directors may make such rules and regulations as it may deem expedient, not
inconsistent with law, the Certificate of Incorporation or these Bylaws,
concerning issuance, transfer and registration of certificates for shares of
capital stock of the Corporation. The Board of Directors may appoint, or
authorize any principal officer to appoint, one or more transfer clerks or one
or more transfer agents and one or more registrars and may require all
certificates for capital stock to bear the signature or signatures of any of
them.
SECTION 5.5. TRANSFERS. Transfers of capital stock shall be made
on the books of the Corporation only upon delivery to the corporation or its
transfer agent of (a) a written direction of the registered holder named in the
certificate or such holder's attorney lawfully constituted in writing, (b) the
certificate for the shares of capital stock being transferred, and (c) a
written assignment of the shares of capital stock evidenced thereby.
SECTION 5.6. CANCELLATION. Each certificate for capital stock
surrendered to the Corporation for exchange or transfer shall be canceled and
no new certificate or certificates shall be issued in exchange for any existing
certificate (other than pursuant to Section 5.7) until such existing
certificate shall have been canceled.
SECTION 5.7. LOST, DESTROYED, STOLEN AND MUTILATED CERTIFICATES.
In the event that any certificate for shares of capital stock of the
Corporation shall be mutilated, the Corporation shall issue a new certificate
in place of such mutilated certificate. In case any such certificate shall be
lost, stolen or destroyed, the Corporation may, in the discretion of the Board
of Directors or a committee designated thereby with power so to act, issue a
new certificate for capital stock in the place of any such lost, stolen or
destroyed certificate. The applicant for any substituted certificate or
certificates shall surrender any mutilated certificate or, in the case of any
lost, stolen or destroyed certificate, furnish satisfactory proof of such loss,
11
theft or destruction of such certificate and of the ownership thereof. The
Board of Directors or such committee may, in its discretion, require the owner
of a lost or destroyed certificate, or his representatives, to furnish to the
Corporation a bond with an acceptable surety or sureties and in such sum as
will be sufficient to indemnify the Corporation against any claim that may be
made against it on account of the lost, stolen or destroyed certificate or the
issuance of such new certificate. A new certificate may be issued without
requiring a bond when, in the judgment of the Board of Directors, it is proper
to do so.
SECTION 5.8. FIXING OF RECORD DATES. Unless otherwise provided in
the Certificate of Incorporation:
(a) The Board of Directors may fix a record date, which
shall not precede the date upon which the resolution fixing the record
date is adopted by the Board of Directors and which shall not be more
than sixty nor less than ten days before the date of any meeting of
stockholders, for the purpose of determining stockholders entitled to
notice of or to vote at such meeting of stockholders or any
adjournment thereof. If no record date is fixed by the Board of
Directors, the record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be given 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. 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 meetings; provided, however, that the Board of Directors may fix a
new record date for the adjourned meeting.
(b) The Board of Directors may fix a record date, which
shall not precede nor be more than ten days after the date upon which
the resolution fixing the record date is adopted by the Board of
Directors, for the purpose of determining stockholders entitled to
consent to corporate action in writing without a meeting. If no record
date has been fixed by the Board of Directors, the record date for
determining stockholders entitled to consent to corporate action in
writing without a meeting, when no prior action by the Board of
Directors is required, 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 the State of 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. Delivery
made to the Corporations registered office shall be by hand or by
certified or registered mail, return receipt requested. If no record
date has been fixed by the Board of Directors and prior action by the
Board of Directors is required, the record date for determining
stockholders entitled to consent to corporate action in writing
without a meeting shall be at the close of business on the day on
which the Board of Directors adopts the resolution taking such prior
action.
(c) The Board of Directors may fix a record date, which
shall not precede the date upon which the resolution fixing the record
date is adopted and which shall not be more than sixty days prior to
such action, for the purpose of determining stockholders entitled to
receive payment of any dividend or other distribution or allotment of
any rights or stockholders entitled to exercise any rights in respect
of any change, conversion,
12
or exchange of stock, or for the purpose of any other lawful action.
If no record date is fixed, the record date for determining
stockholders for any such purpose shall be at the close of business on
the day on which the Board of Directors adopts the resolution relating
thereto.
ARTICLE VI
INDEMNIFICATION
SECTION 6.1. INDEMNIFICATION. The Corporation shall, to the full
extent permitted by applicable law, indemnify any person (and the heirs,
executors and administrators of such person) who, by reason of the f act that
he is or was a Director, officer, employee or agent of the Corporation or of a
constituent corporation absorbed by the Corporation in a consolidation or
merger or is or was serving at the request of the Corporation or such
constituent corporation as a director, officer, employee or agent of any other
corporation, partnership, joint venture, trust or other enterprise, was or is a
party or is threatened to be a party to:
(a) any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Corporation), against
expenses (including attorneys fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in
connection with any such action, suit or proceeding, or,
(b) any threatened, pending or completed action or suit
by or in the right of the Corporation to procure a judgment in its
favor, against expenses (including attorneys, fees) actually and
reasonably incurred by him in connection with the defense or
settlement of such action or suit. Expenses incurred by a Director or
officer of the Corporation in defending an action, suit or proceeding
described in subsections (a) and (b) above may be paid by the
Corporation in advance of the final disposition of such action, suit
or proceeding upon receipt by the Corporation of an undertaking by or
on behalf of the Director or officer to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by
the Corporation as authorized in this Section 6.1. Expenses incurred
by an employee or agent of the Corporation who is not a Director or
officer in defending such an action, suit or proceeding may be so paid
by the Corporation upon, such terms and conditions, if any, as the
Board of Directors deems appropriate.
Any indemnification by the Corporation pursuant hereto shall
be made only in the manner and to the extent authorized by applicable law, and
any such indemnification shall not be deemed exclusive of any other rights to
which those seeking indemnification may otherwise be entitled.
SECTION 6.2. INDEMNIFICATION INSURANCE. The Corporation shall have
power to purchase and maintain insurance on behalf of any person who is or was
a Director, officer, employee or agent of the Corporation, or is or was serving
at the request of the Corporation as a
13
Director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the Corporation would have the power to indemnify him against
such liability under applicable law.
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.1. CORPORATE SEAL. The seal of the Corporation shall be
circular in form with the name of the Corporation in the circumference and the
words "Corporate Seal, Delaware" in the center. The seal may be used by causing
it to be affixed or impressed, or a facsimile thereof may be reproduced or
otherwise used in such manner as the Board of Directors' may determine.
SECTION 7.2. FISCAL YEAR. The fiscal year of the Corporation shall
be from the 1st day of January to the 31st day of December, inclusive, in each
year, or such other twelve consecutive months as the Board of Directors may
designate.
SECTION 7.3. WAIVER OF NOTICE. Whenever any notice is required to
be given under any provision of law, the Certificate of Incorporation, or these
Bylaws, a written waiver thereof, signed by the person or persons entitled to
such notice, whether before or after the time stated therein, shall be deemed
equivalent to notice. Neither the business to be transacted at, nor the purpose
of, any regular or special meeting of the stockholders, Directors, or members
of a committee of Directors, need be specified in any written waiver of notice
unless so required by the Certificate of Incorporation.
Attendance of a person at a meeting shall constitute a waiver
of notice of such meeting, except when the 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 is not lawfully called or
convened.
SECTION 7.4. EXECUTION OF INSTRUMENTS, CONTRACTS, ETC.
(a) All checks, drafts, bills of exchange, notes or
other obligations or orders for the payment of money shall be signed
in the name of the Corporation by the President or such other officer
or officers or person or persons, as the Board of Directors may from
time to time designate.
(b) Except as otherwise provided by law, the Board of
Directors, any committee given specific authority in the premises by
the Board of Directors, or any committee given authority to exercise
generally the powers of the Board of Directors during the intervals
between meetings of the Board of Directors, may authorize any officer,
employee or agent, in the name of and on behalf of the Corporation, to
enter into
14
or execute and deliver deeds, bonds, mortgages, contracts and other
obligations or instruments, and such authority may be general or
confined to specific instances.
(c) All applications, written instruments and papers
required by or filed with any department of the United States
Government or any state, county, municipal or other governmental
official or authority, may, if permitted by applicable law, be
executed in the name of the Corporation by any principal officer or
subordinate officer of the Corporation,, or, to the extent designated
for such purpose from time to time by the Board of Directors, by an
employee or agent of the Corporation. Such designation may contain the
power to substitute, in the discretion of the person named, one or
more other persons.
ARTICLE VIII
AMENDMENTS
SECTION 8.1. BY STOCKHOLDERS. These Bylaws may be amended, altered
or repealed, or new Bylaws may be adopted, at any meeting of stockholders by
the affirmative vote of the holders of not less than a majority of the
outstanding shares of stock entitled to vote thereat, provided that, in the
case of a special meeting, notice that an amendment is to be considered and
acted upon shall be inserted in the notice or waiver of notice of said meeting.
SECTION 8.2. BY DIRECTORS. To the extent permitted by the
Certificate of Incorporation, these Bylaws may be amended, altered or repealed,
or new Bylaws may be adopted, at any regular or special meeting of the Board of
Directors by (he affirmative vote of a majority of the whole Board.
15