EXHIBIT 3.2
BYLAWS
OF
HORIZON PCS, INC.
(A DELAWARE CORPORATION)
EFFECTIVE: OCTOBER 1, 2004
PREAMBLE
These bylaws (the "Bylaws") are subject to, and governed by, the General
Corporation Law of the State of Delaware (the "Delaware Corporation Law") and
the Certificate of Incorporation ("Certificate of Incorporation") of Horizon
PCS, Inc., a Delaware corporation (the "Corporation"), as amended from time to
time (including any certificate establishing a series of Preferred Stock). In
the event of a direct conflict between the provisions of these Bylaws and the
mandatory provisions of the Delaware Corporation Law or the provisions of the
Certificate of Incorporation, such provisions of the Delaware Corporation Law or
the Certificate of Incorporation, as the case may be, will be controlling.
ARTICLE I
OFFICES
SECTION 1. Registered Office and Agent. The registered office and
registered agent of the Corporation shall be as designated from time to time by
the appropriate filing by the Corporation in the office of the Secretary of
State of the State of Delaware.
SECTION 2. Other Offices. The Corporation may also have offices at such
other places, both within and without the State of Delaware, as the Board of
Directors of the Corporation (the "Board of Directors") may from time to time
determine or as the business of the Corporation may require.
ARTICLE II
STOCKHOLDERS
SECTION 1. Annual Meetings. The annual meeting of the stockholders of the
Corporation shall be held on such date, at such time and at such place within or
without the State of Delaware as may be designated by the Board of Directors,
for the purpose of electing Directors and for the transaction of such other
business as may be properly brought before the meeting.
SECTION 2. Special Meetings. Except as otherwise provided in the
Certificate of Incorporation, a special meeting of the stockholders of the
Corporation may be called at any time by a majority of the Directors then in
office or the Chairman of the Board and shall be called by the Chief Executive
Officer, President or the Secretary at the request in writing of stockholders
holding together at least a majority of the voting power of the stock
outstanding and entitled to vote at such meeting. Any special meeting of the
Stockholders shall be held on such date, at such time and at such place within
or without the State of Delaware as the Board of Directors or the officer
calling the meeting may designate. At a special meeting of the stockholders, no
business shall be transacted and no corporate action shall be taken other than
that stated in the notice of the meeting
unless all of the stockholders are present in person or by proxy, in which case
any and all business may be transacted at the meeting even though the meeting is
held without notice.
SECTION 3. Notice of Meetings. Except as otherwise provided in these Bylaws
or by law, a written notice of each meeting of the stockholders shall be given
not less than ten (10) nor more than sixty (60) days before the date of the
meeting to each stockholder of the Corporation entitled to vote at such meeting
at his address as it appears on the records of the Corporation. The notice shall
state 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.
SECTION 4. Nomination of Directors. This Section 4 shall take effect upon
the date on which the Common Stock of the Corporation is registered with the
Securities and Exchange Commission pursuant to Section 12(g)(1) of the
Securities and Exchange Act of 1934, as amended.
Only persons who are nominated in accordance with the following procedures
shall be eligible for election as directors of the Corporation. Nominations of
persons for election to the Board of Directors may be made at any annual meeting
of stockholders, or at any special meeting of stockholders called for the
purpose of electing directors, (a) by or at the direction of the Board of
Directors (or any duly authorized committee thereof) or (b) by any stockholder
of the Corporation (i) who is a stockholder of record on the date of the giving
of the notice provided for in this Section 4 and on the record date for the
determination of stockholders entitled to vote at such meeting and (ii) who
complies with the notice procedures set forth in this Section 4.
In addition to any other applicable requirements, for a nomination to be
made by a stockholder such stockholder must have given timely notice thereof in
proper written form to the Secretary of the Corporation.
To be timely, a stockholder's notice to the Secretary must be delivered to
or mailed and received at the principal executive offices of the Corporation (a)
in the case of an annual meeting, not less than ninety (90) days nor more than
one hundred thirty (130) days prior to the date of the anniversary of the
previous year's annual meeting; provided, however, that in the event the annual
meeting is scheduled to be held on a date more than thirty (30) days prior to or
delayed by more than sixty (60) days after such anniversary date, notice by the
stockholder in order to be timely must be so received not later than the later
of the close of business ninety (90) days prior to such annual meeting or the
tenth (10th) day following the day on which such notice of the date of the
annual meeting was mailed or such public disclosure of the date of the annual
meeting was made and (b) in the case of a special meeting of stockholders called
for the purpose of electing directors, not later than the close of business on
the tenth (10th) day following the day on which notice of the date of the
special meeting was mailed or public disclosure of the date of the special
meeting was made, whichever first occurs (and in no event shall the public
announcement of an adjournment of the meeting commence a new time period for a
giving of a stockholder's notice under this Section).
To be in proper written form, a stockholder's notice to the Secretary must
set forth (a) as to each person whom the stockholder proposes to nominate for
election as a director (i) the
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name, age, business address and residence address of the person, (ii) the
principal occupation or employment of the person, (iii) the class or series and
number of shares of capital stock of the Corporation which are owned
beneficially or of record by the person and (iv) any other information relating
to the person that would be required to be disclosed in a proxy statement or
other filings required to be made in connection with solicitations of proxies
for election of directors pursuant to Section 14 of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), and the rules and regulations
promulgated thereunder; and (b) as to the stockholder giving the notice (i) the
name and record address of such stockholder, (ii) the class or series and number
of shares of capital stock of the Corporation which are owned beneficially or of
record by such stockholder, (iii) a description of all arrangements or
understandings between such stockholder and each proposed nominee and any other
person or persons (including their names) pursuant to which the nomination(s)
are to be made by such stockholder, (iv) a representation that such stockholder
intends to appear in person or by proxy at the meeting to nominate the persons
named in its notice and (v) any other information relating to such stockholder
that would be required to be disclosed in a proxy statement or other filings
required to be made in connection with solicitations of proxies for election of
directors pursuant to Section 14 of the Exchange Act and the rules and
regulations promulgated thereunder. Such notice must be accompanied by a written
consent of each proposed nominee to being named as a nominee and to serve as a
director if elected.
No person shall be eligible for election as a director of the Corporation
unless nominated in accordance with the procedures set forth in this Section 4.
If the Chairman of the meeting determines that a nomination was not made in
accordance with the foregoing procedures, the Chairman shall declare to the
meeting that the nomination was defective and such defective nomination shall be
disregarded.
SECTION 5. Stockholder Proposals; Business To Be Transacted At Meetings.
This Section 5 shall take effect upon the date on which the Common Stock of the
Corporation is registered with the Securities and Exchange Commission pursuant
to Section 12(g)(1) of the Securities and Exchange Act of 1934, as amended.
At any special meeting of the stockholders, only such business shall be
conducted as shall have been brought before the meeting by or at the direction
of the Board of Directors (or any duly authorized committee thereof). No
business may be transacted at an annual meeting of stockholders, other than
business that is either (a) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Board of Directors (or
any duly authorized committee thereof), (b) otherwise properly brought before
the annual meeting by or at the direction of the Board of Directors (or any duly
authorized committee thereof) or (c) otherwise properly brought before the
annual meeting by any stockholder of the Corporation (i) who is a stockholder of
record on the date of the giving of the notice provided for in this Section 5
and on the record date for the determination of stockholders entitled to vote at
such annual meeting and (ii) who complies with the notice procedures set forth
in this Section 5.
In addition to any other applicable requirements (including, without
limitation, Securities and Exchange Commission rules and regulations with
respect to inclusion of stockholder proposals in the Corporation's annual Proxy
Statement), for business to be properly brought
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before an annual meeting by a stockholder, such stockholder must have given
timely notice thereof in proper written form to the Secretary of the
Corporation.
To be timely, a stockholder's notice to the Secretary must be delivered to
or mailed and received at the principal executive offices of the Corporation not
less than ninety (90) days nor more than one hundred thirty (130) days prior to
the date of the anniversary of the previous year's annual meeting; provided,
however, that in the event the annual meeting is scheduled to be held on a date
more than thirty (30) days prior to or delayed by more than sixty (60) days
after such anniversary date, notice by the stockholder in order to be timely
must be so received not later than the later of the close of business ninety
(90) days prior to such annual meeting or the tenth (10th) day following the day
on which such notice of the date of the annual meeting was mailed or such public
disclosure of the date of the annual meeting was first made by the Corporation.
In no event shall the public announcement of an adjournment of an annual meeting
commence a new time period for a giving of a stockholder's notice under this
Section 5.
To be in proper written form, a stockholder's notice to the Secretary must
set forth as to each matter such stockholder proposes to bring before the annual
meeting (i) a brief description of the business desired to be brought before the
annual meeting and the reasons for conducting such business at the annual
meeting, (ii) the name and record address of such stockholder, (iii) the class
or series and number of shares of capital stock of the Corporation which are
owned beneficially or of record by such stockholder, (iv) a description of all
arrangements or understandings between such stockholder and any other person or
persons (including their names) in connection with the proposal of such business
by such stockholder and any material interest of such stockholder in such
business, (v) the names and addresses of other stockholders known by the
stockholder proposing such business to support the proposal, and the class and
number of shares of the Corporation's capital stock known to be beneficially
owned by such other stockholders, and (vi) a representation that such
stockholder intends to appear in person or by proxy at the annual meeting to
bring such business before the meeting.
No business shall be conducted at the annual meeting of stockholders except
business brought before the annual meeting in accordance with the procedures set
forth in this Section 5, provided, however, that, once business has been
properly brought before the annual meeting in accordance with such procedures,
nothing in this Section 5 shall be deemed to preclude discussion by any
stockholder of any such business. If the Chairman of an annual meeting
determines that business was not properly brought before the annual meeting in
accordance with the foregoing procedures, the Chairman shall declare to the
meeting that the business was not properly brought before the meeting and such
business shall not be transacted.
SECTION 6. Quorum. At any meeting of the stockholders, the holders of a
majority of the total outstanding voting shares of stock of the Corporation
entitled to vote at such meeting, present in person or represented by proxy,
shall constitute a quorum of the stockholders for all purposes, unless the
representation of a larger number of shares shall be required by law, by the
Certificate of Incorporation or by these Bylaws, in which case the
representation of the number of voting shares so required shall constitute a
quorum; provided that at any meeting of the stockholders at which the holders of
any class of stock of the Corporation shall be entitled to vote separately as a
class, the holders of a majority of the total outstanding shares of such class,
present in person or
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represented by proxy, shall constitute a quorum for purposes of such class vote
unless the representation of a larger number of shares of such class shall be
required by law, by the Certificate of Incorporation or by these Bylaws.
SECTION 7. Adjourned Meetings. Whether or not a quorum shall be present in
person or represented at any meeting of the stockholders, the holders of a
majority in number of the voting power of stock of the Corporation present in
person or represented by proxy and entitled to vote at such meeting may adjourn
from time to time; provided, however, that if the holders of any class of stock
of the Corporation are entitled to vote separately as a class upon any matter at
such meeting, any adjournment of the meeting in respect of action by such class
upon such matter shall be determined by the holders of a majority of the shares
of such class present in person or represented by proxy and entitled to vote at
such meeting. 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. At the adjourned
meeting the stockholders, or the holder of any class of stock entitled to vote
separately as a class, as the case may be, may transact any business which might
have been transacted by them at the original meeting. If the adjournment is for
more than thirty 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 adjourned meeting as if such
adjourned meeting was a newly called meeting.
SECTION 8. Organization. The Chief Executive Officer, or in his absence the
President or, in his absence, the Chairman of the Board or any Vice President
shall call all meetings of the stockholders to order, and shall act as Chairman
of such meetings. In the absence of such officers, the holders of a majority in
number of voting power of stock of the Corporation present in person or
represented by proxy and entitled to vote at such meeting shall elect a
Chairman.
The Secretary of the Corporation shall act as Secretary of all meetings of
the stockholders; but in the absence of the Secretary, the Chairman may appoint
any person to act as Secretary of the meeting. It shall be the duty of the
Secretary to prepare and make, at least ten days before every meeting of
stockholders, a complete list of stockholders entitled to vote at such 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, either at the Corporation's headquarters or, if so specified, at the
place where the meeting is to be held, for the ten days next preceding the
meeting, to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, and shall be produced and kept at the
time and place of the meeting during the whole time thereof and subject to the
inspection of any stockholder who may be present.
SECTION 9. Voting. Except as otherwise provided in the Certificate of
Incorporation, by law or, in the case of Preferred Stock, by the Board of
Directors, each stockholder shall be entitled to one vote for each share of the
capital stock of the Corporation registered in the name of such stockholder upon
the books of the Corporation. 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, but no such proxy shall be voted or acted upon after three years from its
date, unless the proxy provides for a longer period. When directed by the
presiding officer or upon the demand of any stockholder, the vote upon any
matter before a meeting of stockholders shall be by ballot. Except as otherwise
provided by law or by the
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Certificate of Incorporation, Directors shall be elected by a plurality of the
votes cast at a meeting of stockholders by the stockholders entitled to vote in
the election and other action shall be authorized by a majority of the votes
cast at a meeting of stockholders by the stockholders entitled to vote thereon.
Shares of the capital stock of the Corporation 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.
SECTION 10. Action Without Meeting. Unless otherwise provided by the
Certificate of Incorporation, any action required to be taken at any annual or
special meeting of stockholders, or any action which may be taken at any annual
or special meeting, may be taken without a meeting, without prior notice and
without a vote, if a consent in writing, setting forth the action so taken,
shall be signed by the holders of outstanding stock having not less than a
majority of the voting power entitled to vote thereon. Prompt notice of the
taking of the corporate action without a meeting by less than unanimous written
consent shall be given to those stockholders who have not consented in writing.
SECTION 11. Inspectors. When required by law or directed by the presiding
officer, but not otherwise, the polls shall be opened and closed, the proxies
and ballots shall be received and taken in charge, and all questions touching
the qualification of voters, the validity of proxies and the acceptance or
rejection of votes shall be decided at any meeting of the stockholders by two or
more inspectors who may be appointed by the Board of Directors before the
meeting, or if not so appointed, shall be appointed by the presiding officer at
the meeting. If any person so appointed fails to appear or act, the vacancy may
be filled by appointment in like manner.
SECTION 12. Voting List. At least ten (10) days before each meeting of
stockholders, the Secretary or other officer of the Corporation who has charge
of the Corporation's stock ledger, either directly or through another officer
appointed by him or through a transfer agent appointed by the Board of
Directors, shall prepare a complete list of stockholders entitled to vote there
at, arranged in alphabetical order and showing the address of each stock holder
and number of shares of capital stock registered in the name of each
stockholder. For a period of ten (10) days prior to such meeting, such list
shall be kept on file at a place within the city where the meeting is to beheld,
which place shall be specified in the notice of meeting or a duly executed
waiver of notice of such meeting or, if not so specified, at the place where the
meeting is to be held and shall be open to examination by any stockholder, for
any purpose germane to the meeting, during ordinary business hours. Such list
shall be produced at such meeting and kept at the meeting at all times during
such meeting and may be inspected by any stockholder who is present.
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ARTICLE III
BOARD OF DIRECTORS
SECTION 1. Number and Term of Office. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors,
none of whom need be stockholders of the Corporation. The number of Directors
constituting the Board of Directors and the expiration of their initial terms
shall be fixed from time to time by resolution passed by a majority of the Board
of Directors. The Directors shall, except as hereinafter otherwise provided for
filling vacancies, be elected at the annual meeting of stockholders, and shall
hold office until their respective successors are elected and qualified or until
their earlier resignation or removal.
SECTION 2. Removal, Vacancies and Additional Directors. Any Director may
resign at any time upon written notice to the Corporation. Removal of a
Director, with or without cause, shall require the affirmative vote of the
holders of at least a majority of the voting power entitled to vote at an
election of such Director or Directors, except as otherwise prescribed by the
Delaware Corporation Law. Vacancies caused by any such removal and not filled by
the stockholders at the meeting at which such removal shall have been made, or
any vacancy caused by the death or resignation of any Director or for any other
reason, and any newly created directorship resulting from any increase in the
authorized number of Directors, may be filled by the affirmative vote of a
majority of the Directors then in office, although less than a quorum, and any
Director so elected to fill any such vacancy or newly created directorship shall
hold office until his successor is elected and qualified or until his earlier
resignation or removal. When one or more Directors shall resign effective at a
future date, a majority of the Directors then in office, including those who
have so resigned, shall have power to fill such vacancy or vacancies, the vote
thereon to take effect when such resignation or resignations shall become
effective, and each Director so chosen shall hold office as herein provided in
connection with the filling of other vacancies.
SECTION 3. Place of Meeting. The Board of Directors may hold its meetings
in such place or places in the State of Delaware or outside the State of
Delaware as the Board from time to time shall determine.
SECTION 4. Regular Meetings. Regular meetings of the Board of Directors
shall be held at such times and places as the Board from time to time by
resolution shall determine. No notice shall be required for any regular meeting
of the Board of Directors; but a copy of every resolution fixing or changing the
time or place of regular meetings shall be mailed to every Director at least
five days before the first meeting held in pursuance thereof.
SECTION 5. Special Meetings. Special meetings of the Board of Directors
shall be held whenever called by direction of the Chief Executive Officer, the
President, the Chairman of the Board or by any two of the Directors then in
office. Notice of the day, hour and place of holding of each special meeting
shall be given by sending the same by mail or overnight courier service at least
two days before the meeting or by causing the same to be transmitted by
facsimile, telegraph or other electronic transmission at least twenty-four hours
before the meeting to each Director. Unless otherwise indicated in the notice
thereof, any and all business other than an amendment of these Bylaws may be
transacted at any special meeting, and an amendment of these Bylaws may be acted
upon if the notice of the meeting shall have stated that the amendment of these
Bylaws is one of the
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purposes of the meeting. At any meeting at which every Director shall be
present, even though without any notice, any business may be transacted,
including the amendment of these Bylaws.
SECTION 6. Quorum. Subject to the provisions of Section 2 of this Article
III, a majority of the members of the Board of Directors in office (but in no
case less than two Directors) shall constitute a quorum for the transaction of
business and the vote of the majority of the Directors present at any meeting of
the Board of Directors at which a quorum is present shall be the act of the
Board of Directors. If at any meeting of the Board there is less than a quorum
present, a majority of those present may adjourn the meeting from time to time.
SECTION 7. Organization. The Chairman of the Board shall preside at all
meetings of the Board of Directors. In the absence of the Chairman, an acting
Chairman shall be elected from the Directors present to preside at each meeting.
The Secretary of the Corporation shall act as Secretary of all meetings of the
Directors; but in the absence of the Secretary, the Chairman may appoint any
person to act as Secretary of the meeting.
SECTION 8. Committees. The Board of Directors may, by resolution passed by
a majority of the whole Board, 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 the committee. In
the absence or disqualification of a member of a committee, 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. Any such committee, to the extent provided by resolution
passed by a majority of the whole Board, shall have and may exercise all the
powers and authority of the Board of Directors in the management of the business
and the affairs of the Corporation, and may authorize the seal of the
Corporation to be affixed to all papers which may require it; but no such
committee shall have the power or authority in reference 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 these Bylaws; and unless such resolution, these By-laws, or the
Certificate of Incorporation expressly so provide, no such committee shall have
the power or authority to declare a dividend or to authorize the issuance of
stock.
SECTION 9. Conference Telephone Meetings. Unless otherwise restricted by
the Certificate of Incorporation or by these Bylaws, the members of the Board of
Directors or any committee designated by the Board, may participate in a meeting
of the Board or such committee, as the case may be, by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and such participation shall
constitute presence in person at such meeting.
SECTION 10. Consent of Directors or Committee in Lieu of Meeting. Unless
otherwise restricted by the Certificate of Incorporation or by these Bylaws, any
action required or permitted to be-taken at any meeting of the Board Directors,
or of any committee thereof, may be taken without a meeting if all members of
the Board or committee, as the case may be, consent thereto in writing
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and the writing or writings are filed with the minutes of proceedings of the
Board or committee, as the case may be.
SECTION 11. Presumption of Assent. A director of the Corporation who is
present at the meeting of the Board of Directors at which action on any
corporate matter is taken shall be presumed to have assented to the action,
unless his dissent is entered in the minutes of the meeting or unless he files
his written dissent to such action with the person acting as secretary of the
meeting before the adjournment thereof or forwards any dissent by certified or
registered mail to the Secretary of the Corporation immediately after the
adjournment of the meeting. Such right to dissent shall not apply to a director
who voted in favor of such action.
ARTICLE IV
OFFICERS
SECTION 1. Officers. The officers of the Corporation may be a Chairman of
the Board, a Chief Executive Officer, a President, a Chief Financial Officer,
one or more Vice Presidents, a Secretary and a Treasurer, and such additional
officers, if any, as shall be elected by the Board of Directors pursuant to the
provisions of Section 8 of this Article IV.
All officers shall hold office at the pleasure of the Board of Directors.
Any officer may resign at any time upon written notice to the Corporation.
Officers may, but need not, be Directors. Any number of offices may be held by
the same person. The removal of an officer without cause shall be without
prejudice to his contract rights, if any. The election or appointment of an
officer shall not of itself create contract rights. Any vacancy caused by the
death of any officer, his resignation, his removal, or otherwise, may be filled
by the Board of Directors, and any officer so elected shall hold office at the
pleasure of the Board of Directors. In addition to the powers and duties of the
officers of the Corporation as set forth in these Bylaws, the officers shall
have such authority and shall perform such duties as from time to time may be
determined by the Board of Directors.
SECTION 2. Powers and Duties of the Chief Executive Officer. Subject to the
control of the Board of Directors, the Chief Executive Officer shall have
general charge and control of all of its business and affairs and shall have all
powers and shall perform all duties incident to the office of the Chief
Executive Officer. He shall preside at all meetings of the stockholders and at
all meetings of the Board of Directors and shall have such other powers and
perform such other duties as may from time to time be assigned to him by these
Bylaws or the Board of Directors.
SECTION 3. Powers and Duties of the President. Subject to the control of
the Board of Directors or the direction of the Chief Executive Officer, the
President shall have general charge and control of all its business and affairs
and shall have all powers and shall perform all duties incident to the office of
President. He shall have such other powers and perform such other duties as may
from time to time be assigned to him by these Bylaws, the Board of Directors or
the Chief Executive Officer.
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SECTION 4. Power and Duties of the Chairman of the Board. If a Chairman of
the Board is elected by the directors, the Chairman shall preside at all
meetings of the directors. The Chairman shall have such other powers and duties
as the Board may prescribe from time to time.
SECTION 5. Powers and Duties of the Vice Presidents. Each Vice President
shall have all powers and shall perform all duties incident to the office of
Vice President and shall have such other powers and perform such other duties as
may from time to time be assigned to him by these Bylaws or by the Board of
Directors, the President or the Chief Executive Officer.
SECTION 6. Powers and Duties of the Secretary. The Secretary shall keep the
minutes of all meetings of the Board of Directors and the minutes of all
meetings of the stockholders in books provided for that purpose; he shall attend
to the giving or serving of all notices of the Corporation; he shall have
custody of the corporate seal of the Corporation and shall affix the same to
such documents and other papers as the Board of Directors, the President or the
Chief Executive Officer shall authorize and direct; he shall have charge of the
stock certificate books, transfer books and stock ledgers and such other books
and papers as the Board of Directors, the President or the Chief Executive
Officer shall direct, all of which shall at all reasonable times be open to the
examination of any Director, upon application, at the office of the Corporation
during business hours; and he shall have all powers and shall perform all duties
incident to the office of Secretary and shall also have such other powers and
shall perform such other duties as may from time to time be assigned to him by
these Bylaws or by the Board of Directors, the President or the Chief Executive
Officer.
SECTION 7. Powers and Duties of the Chief Financial Officer. The Chief
Financial Officer shall have custody of, and when proper shall pay out, disburse
or otherwise dispose of, all funds and securities of the Corporation which may
have come into his hands; he may endorse on behalf of the Corporation for
collection checks, notes and other obligations and shall deposit the same to the
credit of the Corporation in such bank or banks or depositary or depositaries as
the Board of Directors may designate; he shall sign all receipts and vouchers
for payments made to the Corporation; he shall enter or cause to be entered
regularly in the books of the Corporation kept for the purpose full and accurate
accounts of all moneys received or paid or otherwise disposed of by him and
whenever required by the Board of Directors, the President or the Chief
Executive Officer shall render statements of such accounts; he shall, at all
reasonable times, exhibit his books and accounts to any Director of the
Corporation upon application at the office of the Corporation during business
hours; and he shall have all powers and shall perform all duties incident of the
office of Chief Financial Officer and shall also have such other powers and
shall perform such other duties as may from time to time be assigned to him by
these Bylaws or by the Board of Directors, the President or the Chief Executive
Officer.
SECTION 8. Additional Officers. The Board of Directors may from time to
time elect such other officers (who may but need not be Directors), including
Chief Operating Officers, a Treasurer, a Controller, Assistant Treasurers,
Assistant Secretaries and Assistant Controllers, as the Board may deem advisable
and such officers shall have such authority and shall perform such duties as may
from time to time be assigned to them by the Board of Directors, the President
or the Chief Executive Officer. The Board of Directors may from time to time by
resolution delegate to any Assistant Treasurer or Assistant Treasurers any of
the powers or duties herein assigned to the Treasurer; and may similarly
delegate to any Assistant Secretary or Assistant Secretaries any of the
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powers or duties herein assigned to the Secretary. Each of the Board of
Directors, the President or Chief Executive Officer of the Company is hereby
authorized to appoint and remove from time to time such officers of the Company,
who will hold positions of vice president or assistant vice president and who
will not be corporate officers but shall be administrative officers of the
Company, as the Board of Directors, the President or the Chief Executive Officer
of the Company may deem advisable and such officers shall have such authority
and shall perform such duties as may from time to time be assigned to them by
the Board of Directors, the President or the Chief Executive Officer of the
Company.
SECTION 9. Giving of Bond by Officers. All officers of the Corporation, if
required to do so by the Board of Directors, shall furnish bonds to the
Corporation for the faithful performance of their duties, in such penalties and
with such conditions and security as the Board shall require.
SECTION 10. Voting upon Stocks. Unless otherwise ordered by the Board of
Directors, the President or any Vice President shall have full power and
authority on behalf of the Corporation to attend and to act and to vote, or in
the name of the Corporation to execute proxies to vote, at any meeting of
stockholders of any corporation in which the Corporation may hold stock, and at
any such meeting shall possess and may exercise, in person or by proxy, any and
all rights, powers and privileges incident to the ownership of such stock. The
Board of Directors may from time to time, by resolution, confer like powers upon
any other person or persons.
SECTION 11. Compensation of Officers. The officers of the Corporation shall
be entitled to receive such compensation for their services as shall from time
to time be determined by the Board of Directors.
ARTICLE V
INDEMNIFICATION
(a) The Corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by
reason of the fact that the person is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another Corporation, partnership,
joint venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by the person in connection with such action, suit, or proceeding if
the person acted in good faith and in a manner the person reasonably believed to
be in or not opposed to the best interests of the Corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe the
person's conduct was unlawful. The termination of any action, suit or proceeding
by judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which the person reasonably believed to be
in or not opposed to the best interests of the Corporation, and, with respect to
any criminal action or proceeding, had reasonable cause to believe that the
person's conduct was unlawful.
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(b) The Corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the Corporation to procure a judgment in
its favor by reason of the fact that the person is or was a director, officer,
employee or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another Corporation,
partnership, joint venture, trust or other enterprise against expenses
(including attorneys' fees), actually and reasonably incurred by the person in
connection with the defense or settlement of such action or suit if the person
acted in good faith and in a manner the person reasonably believed to be in or
not opposed to the best interests of the Corporation and except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper.
(c) To the extent that a present or former director or officer of the
Corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (a) and (b) of this
Article V, or in defense of any claim, issue or matter therein, such person
shall be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this Article
V (unless ordered by a court) shall be made by the Corporation only as
authorized in the specific case upon a determination that indemnification of the
present or former director, officer, employee or agent is proper in the
circumstances because the person has met the applicable standard of conduct set
forth in subsections (a) and (b) of this Article V. Such determination shall be
made, with respect to a person who is a director or officer at the time of such
determination, (1) by a majority vote of the directors who are not parties to
such action, suit or proceeding, even though less than a quorum, or (2) by a
committee of such directors designated by majority vote of such directors, even
though less than a quorum, or (3) if there are no such directors, or if such
directors so direct, by independent legal counsel in a written opinion, or (4)
by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or investigative
action, suit or proceeding shall be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director of officer to repay such amount if
it shall ultimately be determined that such person is not entitled to be
indemnified by the Corporation as authorized in this Article V. Such expenses
(including attorneys' fees) incurred by former directors and officers or other
employees and agents may be so paid upon such terms and conditions, if any, as
the Corporation deems appropriate.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this Article V shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under
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any bylaw, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in such person's official capacity and as to action
in another capacity while holding such office.
(g) A Corporation shall have the power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another Corporation, limited
liability company, partnership, joint venture, trust or other enterprise against
any liability asserted against such person and incurred by such person in any
such capacity, or arising out of such person's status as such, whether or not
the Corporation would have the power to indemnify such person against such
liability under this Article V.
(h) For purposes of this Article V, references to "the Corporation"
shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, and employees
or agents, so that any person who is or was a director, officer, employee or
agent of such constituent corporation, or is or was serving at the request of
such constituent corporation as a director, officer, employee or agent of
another corporation, limited liability company, partnership, joint venture,
trust or other enterprise, shall stand in the same position under this Article V
with respect to the resulting or surviving corporation as such person would have
with respect to such constituent corporation if its separate existence had
continued.
(i) For purposes of this Article V, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to any employee benefit plan; and
references to "serving at the request of the Corporation" shall include any
service as a director, officer, employee or agent of the Corporation which
imposes duties on, or involves services by, such director, officer, employee, or
agent with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner such person
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the Corporation" as referred to in this Article
V.
(j) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article V shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
(k) In the event of payment of indemnification to a person described
in this Article V, the Corporation shall be subrogated to the extent of such
payment to any right of recovery such person may have and such person, as a
condition of receiving indemnification from the Corporation, shall execute all
documents and do all things that the Corporation may deem necessary or desirable
to perfect such right of recovery, including the execution of such documents
necessary to enable the Corporation effectively to enforce any such recovery.
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(l) The Corporation shall not be liable under this Article V to make
any payment in connection with any claim made against a person described in this
Article V to the extent such person has otherwise received payment (under any
insurance policy, by-law or otherwise) of the amounts otherwise indemnifiable
hereunder.
(m) The foregoing indemnification provisions shall be deemed to be a
contract between the Corporation and each indemnified party. Such contract right
may not be modified retroactively in any material respect as to the indemnified
party without the consent of the indemnified party. The Corporation and an
indemnified party may enter into an agreement providing for indemnification and
advancement of expenses including attorneys fees, that may change, enhance,
qualify or limit any right to indemnification or advancement of expenses created
by this Article V.
ARTICLE VI
STOCK-SEAL-FISCAL YEAR
SECTION 1. Certificates For Shares of Stock. The certificates for shares of
stock of the Corporation shall be in such form, not inconsistent with the
Certificate of Incorporation, as shall be approved by the Board of Directors.
All certificates shall be signed by the President or a Vice President and by the
Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer,
and shall not be valid unless so signed.
In case any officer or officers who shall have signed any such certificate
or certificates shall cease to be such officer or officers of the Corporation,
whether because of death, resignation or otherwise, before such certificate or
certificates shall have been delivered by the Corporation, such certificate or
certificates may nevertheless be issued and delivered as though the person or
persons who signed such certificate or certificates had not ceased to be such
officer or officers of the Corporation.
All certificates for shares of stock shall be consecutively numbered as the
same are issued. The name of the person owning the shares represented thereby
with the number of such shares and the date of issue thereof shall be entered on
the books of the Corporation.
Except as hereinafter provided, all certificates surrendered to the
Corporation for transfer shall be cancelled, and no new certificates shall be
issued until former certificates for the same number of shares have been
surrendered and cancelled.
SECTION 2. Lost, Stolen or Destroyed Certificates. Whenever a person owning
a certificate for shares of stock of the Corporation alleges that it has been
lost, stolen or destroyed, he shall file in the office of the Corporation an
affidavit setting forth, to the best of his knowledge and belief, the time,
place and circumstances of the loss, theft or destruction, and, if required by
the Board of Directors, a bond of indemnity or other indemnification sufficient
in the opinion of the Board of Directors to indemnify the Corporation and its
agents against any claim that may be made against it or them on account of the
alleged loss, theft or destruction of any such certificate or the issuance of a
new certificate in replacement therefor. Thereupon the Corporation may cause to
he issued to such person a new certificate in replacement for the certificate
alleged to have been lost,
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stolen or destroyed. Upon the stub of every new certificate so issued shall be
noted the fact of such issue and the number, date and the name of the registered
owner of the lost, stolen or destroyed certificate in lieu of which the new
certificate is issued.
SECTION 3. Transfer of Shares. Shares of stock of the Corporation shall be
transferred on the books of the Corporation by the holder thereof, in person or
by his attorney duly authorized in writing, upon surrender and cancellation of
certificates for the number of shares of stock to be transferred, except as
provided in Section 2 of this Article VI.
SECTION 4. Regulations. The Board of Directors shall have power and
authority to make such rules and regulations as it may deem expedient concerning
the issue, transfer and registration of certificates for shares of stock of the
Corporation.
SECTION 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or to express consent to corporate action in writing
without a meeting or to receive payment of any dividend or other distribution or
allotment of any rights, or to exercise any rights in respect of any change,
conversion or exchange of stock or for the purpose of any other lawful action,
as the case may be, the Board of Directors may fix, in advance, a record date,
which shall not be (i) more than sixty (60) nor less than ten (10) days before
the date of such meeting, or (ii) in the case of corporate action to be taken by
consent in writing without a meeting, prior to, or more than ten (10) days
after, the date upon which the resolution fixing the record date is adopted by
the Board of Directors, or (iii) more than sixty (60) days prior to any other
action.
If no record date is fixed, the record date for determining stockholders
entitled to notice of or to vote at a meeting of stockholders shall be at the
close of business on the day 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; the record date for determining stockholders
entitled to express consent to corporate action in writing without a meeting,
when no prior action by the Board of Directors is necessary, shall be the day on
which the first written consent is delivered to the Corporation; and the record
date for determining stockholders for any other purpose shall be at the close of
business on the day on which the Board of Directors adopts the resolution
relating thereto. A determination of stockholders of record entitled to notice
of or to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
SECTION 6. Dividends. Subject to the provisions of the Certificate of
Incorporation, the Board of Directors shall have power to declare and pay
dividends upon shares of stock of the Corporation in cash, in property or in
shares of the capital stock of the Corporation, but only out of funds available
for the payment of dividends as provided by law. Subject to the provisions of
the Certificate of Incorporation, any dividends declared upon the stock of the
Corporation shall be payable on such date or dates as the Board of Directors
shall determine. If the date fixed for the payment of any dividend shall in any
year fall upon a legal holiday, then the dividend payable on such date shall be
paid on the next day not a legal holiday.
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SECTION 7. Corporate Seal. The Board of Directors shall provide a suitable
seal, containing the name of the Corporation, which seal shall be kept in the
custody of the Secretary. A duplicate of the seal may be kept and be used by any
officer of the Corporation designated by the Board of Directors or the
President.
SECTION 8. Fiscal Year. The fiscal year of the Corporation shall be such
fiscal year as the Board of Directors from time to time by resolution shall
determine; provided that if such fiscal year is not fixed by the Board of
Directors, the Fiscal year shall be the calendar year.
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 1. Checks, Notes, Etc. All checks, drafts, bills of exchange,
acceptances, notes or other obligations or orders for the payment of money shall
be signed and, if so required by the Board of Directors, counter-signed by such
officers of the Corporation and/or other persons as the Board of Directors from
time to time shall designate. Checks, drafts, bills of exchange, acceptances,
notes, obligations and orders for the payment of money made payable to the
Corporation may be endorsed for deposit to the credit of the Corporation with a
duly authorized depository by the Chief Financial Officer and/or such other
officers or persons as the Board of Directors from time to time may designate.
SECTION 2. Method of Notice. Whenever by statute, the Certificate of
Incorporation, or these Bylaws, notice is required to be given to any committee
member, director, or stockholder and no provision is made as to how such notice
shall be given, personal notice shall not be required and any such notice may be
given (a) in writing, by mail, postage prepaid, addressed to such committee
member, director, or stockholder at his address as it appears on the books or
(in the case of a stockholder) the stock transfer records of the Corporation, or
(b) by any other method permitted by law (including but not limited to overnight
courier service, telegram, telex, or telefax). Any notice required or permitted
to be given by mail shall be deemed to be delivered and given at the time when
the same is deposited in the United States mail as aforesaid. Any notice
required or permitted to be given by overnight courier service shall be deemed
to be delivered and given at the time delivered to such service with all charges
prepaid and addressed as aforesaid. Any notice required or permitted to be given
by telegram, telex, or telefax shall be deemed to be delivered and given at the
time transmitted with all charges prepaid and addressed as aforesaid.
SECTION 3. Waivers of Notice. Whenever any notice whatever is required to
be given by law, by the Certificate of Incorporation or by these Bylaws to any
person or persons a waiver thereof in writing, signed by the person or persons
entitled to the notice, whether before or after the time stated therein, shall
be deemed equivalent thereto.
SECTION 4. Offices Outside of Delaware. Except as otherwise required by the
laws of the State of Delaware, the Corporation may have an office or offices and
keep its books, documents and papers outside of the State of Delaware at such
place or places as from time to time may be determined by the Board of
Directors, the Chief Executive Officer or the President.
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ARTICLE VIII
AMENDMENTS
These Bylaws may be altered, amended or repealed, except as specified in
the Certificate of Incorporation.
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