EXHIBIT 3.2
AS AMENDED,
AS OF FEBRUARY 24, 2005
AMENDED AND RESTATED
BY-LAWS
OF
CUMULUS MEDIA INC.
ARTICLE I. OFFICES
SECTION 1.1 REGISTERED OFFICE AND AGENT. The Corporation shall at all
times maintain a registered office in the state of Delaware and a registered
agent at that address, as required by the Delaware General Corporation Law (the
"DGCL"), but may have such other offices located in or outside the State of
Delaware as the Board of Directors of the Corporation may from time to time
determine. The registered agent may be changed from time to time by the Board of
Directors.
ARTICLE II. STOCKHOLDERS' MEETINGS
SECTION 2.1 ANNUAL MEETING. The annual meeting of the shareholders of the
Corporation shall be held on such date and at such time and place as may be
fixed by resolution of the Board of Directors, for the purpose of electing
Directors and transacting such other business as may properly come before the
meeting. If the election of Directors is not accomplished at the annual meeting
of the shareholders, or at any adjournment of such meeting, the Board of
Directors shall cause the election to be held at a special meeting of the
shareholders as soon thereafter as may be convenient.
At an annual meeting of the shareholders, only such business shall be
conducted as shall have been properly brought before the meeting. To be properly
brought before an annual meeting, business must be (a) specified in the notice
of meeting (or any supplement thereto) given by or at the direction of the Board
of Directors; (b) otherwise brought before the meeting by or at the direction of
the Board of Directors; or (c) brought before the meeting by a shareholder
pursuant to this Section 2.1.
Only persons who are nominated in accordance with the procedures set forth
in this Section 2.1 shall be eligible for election as Directors, except as may
otherwise be provided by the terms of the Corporation's Certificate of
Incorporation with respect to (i) the rights of holders of any series of
Preferred Stock to elect Directors, and (ii) the rights of holders of Class C
Common Stock to elect one (1) Director. Nominations of persons for election to
the Board of Directors of the Corporation may be made at a meeting of
shareholders by or at the direction of the Board of Directors or by any
shareholder of the Corporation entitled to vote for the election of directors at
the meeting who complies with the procedures set forth in this Section 2.1.
For business to be properly brought before an annual meeting by a
shareholder, and for nominations by shareholders for the election of directors,
the shareholder must have given timely
notice thereof in writing to the Secretary of the Corporation. All notices given
pursuant to this Section 2.1 shall be in writing and must be received by the
Secretary of the Corporation not later than ninety (90) days prior to the
anniversary date of the annual meeting of shareholders in the immediately
preceding year. All such notices shall include (i) a representation that the
person sending the notice is a shareholder of record and will remain such
through the Meeting Record Date (defined in Section 2.5); (ii) the name and
address, as they appear on the Corporation's books, of such shareholder; (iii)
the class and number of the Corporation's shares which are owned beneficially
and of record by such shareholder; and (iv) a representation that such
shareholder intends to appear in person or by proxy at such meeting to make the
nomination or move the consideration of other business set forth in the notice.
Notice as to proposals with respect to any business to be brought before the
meeting other than election of directors shall also set forth the text of the
proposal and may set forth any statement in support thereof that the shareholder
wishes to bring to the attention of the Corporation, and shall specify any
material interest of such shareholder in such business. The person providing the
notice shall also be required to provide such further information as may be
requested by the Corporation to comply with federal securities laws, rules and
regulations. Notice as to nominations shall set forth the name(s) of the
nominee(s), address and principal occupation or employment of each, a
description of all arrangements or understandings between the shareholder and
each nominee and any person or persons (naming such person or persons) pursuant
to which the nomination or nominations are to be made by the shareholder, the
written consent of each nominee to serve as a director if so elected and such
other information as would be required to be included in a proxy statement
soliciting proxies for the election of the nominee(s) of such shareholder.
The chairman of the meeting shall refuse to acknowledge the nomination of
any person or the consideration of any business not made in compliance with the
foregoing procedures.
SECTION 2.2 SPECIAL MEETINGS.
(A) A special meeting of shareholders (a "Special Meeting") may be
called only (i) by the Board of Directors pursuant to a resolution adopted by
three-quarters (3/4) of the entire Board of Directors, or (ii) by the Board of
Directors upon the demand, in accordance with this Section 2.2, of the holders
of record of shares representing at least 20% of all the votes entitled to be
cast on any issue proposed to be considered at the Special Meeting.
(B) In order that the Corporation may determine the shareholders
entitled to demand a Special Meeting, the Board of Directors may fix a record
date to determine the shareholders entitled to make such a demand (the "Demand
Record Date"). The Demand Record Date shall not precede the date upon which the
resolution fixing the Demand Record Date is adopted by the Board of Directors
and shall not be more than sixty (60) days nor less than ten (10) days prior to
the Special Meeting. Any shareholder of record seeking to have shareholders
demand a Special Meeting shall, by sending written notice to the Secretary of
the Corporation by hand or by certified or registered mail, return receipt
requested, request the Board of Directors to fix a Demand Record Date. The Board
of Directors shall promptly, but in all events within thirty (30) days after the
date on which a valid request to fix a Demand Record Date is received, adopt a
resolution fixing the Demand Record Date and shall make a public announcement of
such Demand Record Date. If no Demand Record Date has been fixed by the Board of
Directors within thirty (30) days after the date on which such request is
received by the Secretary, the
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Demand Record Date shall be the 30th day after the first day on which a valid
written request to set a Demand Record Date is received by the Secretary. To be
valid, such written request shall set forth the purpose or purposes for which
the Special Meeting is to be held, shall be signed by one or more shareholders
of record (or their duly authorized proxies or other representatives), shall
bear the date of signature of each such shareholder (or proxy or other
representative) and shall set forth all information about each such shareholder
and about the beneficial owner or owners, if any, on whose behalf the request is
made that would be required to be set forth in a shareholder's notice described
in Section 2.1. Any business proposed to be brought before the special meeting
must be of a character that requires a special meeting under Delaware law or the
Certificate of Incorporation.
(C) In order for a shareholder or shareholders to demand a Special
Meeting, a written demand or demands for a Special Meeting by the holders of
record as of the Demand Record Date of shares representing at least 20% of all
the votes entitled to be cast on any issue proposed to be considered at the
Special Meeting must be delivered to the Corporation. To be valid, each written
demand by a shareholder for a Special Meeting shall set forth the specific
purpose or purposes for which the Special Meeting is to be held (which purpose
or purposes shall be limited to the purpose or purposes set forth in the written
request to set a Demand Record Date received by the Corporation pursuant to
paragraph (B) of this Section 2.2), shall be signed by one or more persons who
as of the Demand Record Date are shareholders of record (or their duly
authorized proxies or other representatives), shall bear the date of signature
of each such shareholder (or proxy or other representative), and shall set forth
the name and address, as they appear in the Corporation's books, of each
shareholder signing such demand and the class or series and number of shares of
the Corporation which are owned of record and beneficially by each such
shareholder, shall be sent to the Secretary by hand or by certified or
registered mail, return receipt requested, and shall be received by the
Secretary (i) not before, and (ii) within seventy (70) days after, the Demand
Record Date.
(D) If the provisions of this Section 2.2 have been fully complied
with, the Board of Directors by resolution shall call a special meeting. The
Corporation shall not be required to call a Special Meeting upon shareholder
demand unless, in addition to the documents required by paragraph (C) of this
Section 2.2, the Secretary receives a written agreement signed by each
Soliciting Stockholder (as defined herein), pursuant to which each Soliciting
Stockholder, jointly and severally, agrees to pay the Corporation's costs of
holding the Special Meeting, including the costs of preparing and mailing proxy
materials for the Corporation's own solicitation, provided that if each of the
resolutions introduced by any Soliciting Stockholder at such meeting is adopted,
and each of the individuals nominated by or on behalf of any Soliciting
Stockholder for election as director at such meeting is elected, then the
Soliciting Stockholders shall not be required to pay such costs. For purposes of
this paragraph (D), the following terms shall have the meanings set forth below:
(i) "Affiliate" shall have the meaning assigned to such term
in Rule 12b-2 promulgated under the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
(ii) "Participant in a Solicitation" shall have the meaning
assigned to such term in Item 4 of Schedule 14A promulgated under the Exchange
Act.
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(iii) "Person" shall mean any individual, firm, corporation,
partnership, limited liability company, joint venture, association, trust,
unincorporated organization or other entity.
(iv) "Proxy" shall have the meaning assigned to such term in
Rule 14a-1 promulgated under the Exchange Act.
(v) "Solicitation" shall have the meaning assigned to such
term in Rule 14a-1 promulgated under the Exchange Act.
(vi) "Soliciting Stockholder" shall mean, with respect to any
Special Meeting demanded by a shareholder or shareholders, any of the following
Persons:
(a) each shareholder signing any such demand;
(b) if the number of shareholders signing the demand or
demands for a meeting delivered to the Corporation pursuant to paragraph (C) of
this Section 2.2 is more than ten (10), each Person who is or intends to be a
Participant in a Solicitation in connection with the Special Meeting (other than
a Solicitation of Proxies on behalf of the Corporation); or
(c) any Affiliate of a Soliciting Stockholder, if a
majority of the directors then in office determine, in good faith, that such
Affiliate should be required to sign the written notice described in paragraph
(C) of this Section 2.2 and/or the written agreement described in this paragraph
(D) in order to prevent the purposes of this Section 2.2 from being evaded.
(E) Except as provided in the following sentence, any Special
Meeting shall be held at such hour, day and place as may be designated by
resolution of the Board of Directors. In the case of any Special Meeting called
by the Board of Directors upon the demand of shareholders (a "Demand Special
Meeting"), the date of the Demand Special Meeting shall be not more than seventy
(70) days after the Meeting Record Date (as defined in Section 2.5 of these
By-Laws); provided that in the event that the directors then in office fail to
designate an hour and date for a Demand Special Meeting within thirty (30) days
after the date that valid written demands for such meeting by the holders of
record as of the Demand Record Date of shares representing at least 20% of all
the votes entitled to be cast on any issue proposed to be considered at the
Special Meeting, as well as the agreement described in paragraph (D), are
delivered to the Corporation (the "Delivery Date"), then such meeting shall be
held at 2:00 p.m. (local time) on the 100th day after the Delivery Date or, if
such 100th day is not a Business Day (as defined below), on the first preceding
Business Day. In fixing a meeting date for any Special Meeting, the Board of
Directors may consider such factors as it deems relevant within the good faith
exercise of its business judgment, including, without limitation, the nature of
the action proposed to be taken, the facts and circumstances surrounding any
demand for such meeting, and any plan of the Board of Directors to call an
Annual Meeting or a Special Meeting.
(F) The Corporation may engage independent inspectors of elections
to act as an agent of the Corporation for the purpose of promptly performing a
ministerial review of the validity of any purported written demand or demands
for a Special Meeting received by the
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Secretary. For the purpose of permitting the inspectors to perform such review,
no purported demand shall be deemed to have been delivered to the Corporation
until the earlier of (i) five (5) Business Days following receipt by the
Secretary of such purported demand and (ii) such date as the independent
inspectors certify to the Corporation that the valid demands received by the
Secretary represent at least 10% of all the votes entitled to be cast on each
issue proposed to be considered at the Special Meeting. Nothing contained in
this paragraph shall in any way be construed to limit the ability of the Board
of Directors or any shareholder to contest the validity of any demand, whether
during or after such five (5) Business Day period, or to take any other action
(including, without limitation, the commencement, prosecution or defense of any
litigation with respect thereto).
(G) Only business within the purpose described in the meeting notice
given in accordance with Section 2.4 of these By-Laws may be conducted at a
Special Meeting.
(H) For purposes of these By-Laws, "Business Day" shall mean any day
other than a Saturday, a Sunday or a day on which banking institutions in the
State of New York are authorized or obligated by law or executive order to
close.
SECTION 2.3 PLACE OF MEETING. The annual meeting of the shareholders, and
any Special Meeting of the shareholders shall be held at such place, either
within or without the State of Delaware, as the Board of Directors may
designate.
SECTION 2.4 NOTICES TO SHAREHOLDERS.
(A) REQUIRED NOTICE. Written notice stating the place, day and hour
of the meeting and, in case of a Special Meeting, the purpose or purposes for
which the meeting is called, shall be delivered not less than ten (10) days
(twenty (20) days in the case of a merger, consolidation, share exchange,
dissolution or sale, lease or exchange of assets) nor more than sixty (60) days
before the date of the meeting (unless a different time is provided by the DGCL
or the Corporation's Certificate of Incorporation), by or at the direction of
the Chairman, the President, or the Secretary, to each shareholder of record
entitled to vote at such meeting and to any other shareholder entitled by the
DGCL or the Corporation's Certificate of Incorporation to receive notice of such
meeting. If mailed, such notice is effective when deposited in the United States
mail, and shall be addressed to the shareholder's address shown in the current
record of shareholders of the Corporation, with postage thereon prepaid.
(B) ADJOURNED MEETING. Except as provided in the next sentence, if
any shareholder meeting is adjourned to a different date, time, or place, notice
need not be given of the new date, time, and place, if the new date, time, and
place is announced at the meeting before adjournment. If a new record date for
the adjourned meeting is or must be fixed, then notice must be given pursuant to
the requirements of paragraph (A) of this Section 2.4, to those persons who are
shareholders as of the new record date.
(C) WAIVER OF NOTICE. A shareholder may waive notice in accordance
with Section 2.12 of these By-Laws.
(D) CONTENTS OF NOTICE. The notice of each Special Meeting shall
include a description of the purpose or purposes for which the meeting is
called. Except as
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otherwise provided in these By-Laws, in the Corporation's Certificate of
Incorporation, or in the DGCL, the notice of an annual shareholder meeting need
not include a description of the purpose or purposes for which the meeting is
called. If the purpose of the meeting, or one of its purposes, is to consider a
proposed reduction of stated capital without amendment to the Certificate of
Incorporation, or voluntary dissolution or revocation of a voluntary dissolution
by act of the Corporation, or a proposed disposition of all (or substantially
all) of the assets of the Corporation outside of the ordinary course of
business, the notice of the meeting shall state such purpose. If the purpose of
the meeting, or one of its purposes, is to consider a proposed amendment to the
Certificate of Incorporation, the notice shall set forth the proposed amendment
or a summary of the changes to be effected thereby; and if the purpose of the
meeting, or one of its purposes, is to consider a proposed merger or
consolidation, a copy or a summary of the plan of merger or plan of
consolidation, as the case may be, shall be included in or enclosed with the
notice of the meeting.
SECTION 2.5 FIXING OF RECORD DATE.
(A) MEETINGS. The Board of Directors may fix a date as the record
date for any determination of shareholders entitled to notice of, and to vote
at, a shareholders' meeting, such date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Directors and shall
not be less than ten (10) days nor more than sixty (60) days prior to the
meeting (the "Meeting Record Date"). In the case of any Demand Special Meeting,
(i) the Meeting Record Date shall be not later than the 30th day after the
Delivery Date and (ii) if the Board of Directors fails to fix the Meeting Record
Date within thirty (30) days after the Delivery Date, then the close of business
on such 30th day shall be the Meeting Record Date. When a determination of
shareholders entitled to vote at any meeting of shareholders has been made as
provided in these By-Laws, such determination shall be applied to any
adjournment thereof unless the Board of Directors fixes a new record date and
except as otherwise required by law. A new record date must be set if a meeting
is adjourned to a date more than one hundred twenty (120) days after the date
fixed for the original meeting.
(B) DISTRIBUTIONS. The Board of Directors may fix a date as the
record date for determining shareholders entitled to receive a dividend or
distribution, which record date shall not precede the date upon which the
resolution fixing the record date is adopted, and which record date shall not be
more than sixty (60) days prior to such payment. If no record date is fixed for
the determination of shareholders entitled to receive a dividend or distribution
(other than a distribution involving a purchase, redemption or other acquisition
of the Corporation's shares), the close of business on the day on which the
resolution of the Board of Directors is adopted declaring the dividend or
distribution shall be the record date.
SECTION 2.6 SHAREHOLDER LIST. The officer or agent having charge of the
stock transfer books for shares of the Corporation shall, by the earlier of (a)
twenty (20) days after the record date, or (b) ten (10) days before the meeting
date, for any meeting of shareholders, make a complete record of the
shareholders entitled to vote at such meeting, arranged alphabetically by class
or series of shares and showing the address of and the number of shares held by
each shareholder. The shareholder list shall be available at the meeting and may
be inspected by any shareholder or his or her agent or attorney at any time
during the meeting or any adjournment. Any shareholder or his or her agent or
attorney may inspect the shareholder list
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beginning ten (10) business days before the meeting date and continuing until
the meeting date, at the Corporation's registered office and, subject to the
DGCL, may copy the list, during regular business hours and at his or her
expense, during the period that it is available for inspection hereunder. The
original stock transfer books and nominee certificates on file with the
Corporation (if any) shall be prima facie evidence as to who are the
shareholders entitled to inspect the shareholder list or to vote at any meeting
of shareholders. Failure to comply with the requirements of this section shall
not affect the validity of any action taken at such meeting.
SECTION 2.7 QUORUM. Except as otherwise provided in the Corporation's
Certificate of Incorporation, these By-Laws or the DGCL, a majority of the votes
entitled to be cast by shares entitled to vote as a separate voting group on a
matter, represented in person or by proxy, shall constitute a quorum of that
voting group for action on that matter at a meeting of shareholders. Once a
share is represented for any purpose at a meeting, other than for the sole
purpose of objecting to holding the meeting or transacting business at the
meeting, it is considered present for purposes of determining whether a quorum
exists for the remainder of the meeting and for any adjournment of that meeting
unless a new record date is or must be set for that meeting. If a quorum is
present, the affirmative vote of a majority of the votes entitled to be cast by
shares entitled to vote as a separate voting group on a matter and represented
at the meeting shall be the act of the shareholders unless the vote of a greater
number is required by the DGCL or the Corporation's Certificate of
Incorporation.
SECTION 2.8 CONDUCT OF MEETINGS. The Chairman or, in his or her absence,
any officer or Director chosen by the Board of Directors shall call the meeting
of the shareholders to order and shall act as Chairman of the meeting, and the
Secretary shall act as secretary of all meetings of the shareholders, but, in
the absence of the Secretary, the presiding officer may appoint any other person
to act as secretary of the meeting.
SECTION 2.9 PROXIES. At all meetings of shareholders, a shareholder
entitled to vote may vote in person or by proxy appointed in writing by the
shareholder or by his or her duly authorized attorney-in-fact. All proxy
appointment forms shall be filed with the Secretary or other officer or agent of
the Corporation authorized to tabulate votes before or at the time of the
meeting. Unless the appointment form conspicuously states that it is irrevocable
and the appointment is coupled with an interest, a proxy appointment may be
revoked at any time. The presence of a shareholder who has filed a proxy
appointment shall not of itself constitute a revocation. No proxy appointment
shall be valid after three (3) years from the date of its execution, unless
otherwise expressly provided in the appointment form. The Board of Directors
shall have the power and authority to make rules that are not inconsistent with
the DGCL as to the validity and sufficiency of proxy appointments.
SECTION 2.10 VOTING OF SHARES. Each outstanding share shall be entitled to
that number of votes specified in the Corporation's Certificate of
Incorporation; provided, however, that if no such vote is specified, each
outstanding share shall be entitled to one (1) vote on each matter submitted to
a vote at a meeting of shareholders, except to the extent that the voting rights
of the shares are enlarged, limited or denied by the DGCL. Shares of the
Corporation standing in the name of another corporation, whether domestic or
foreign, may be voted by such officer, agent, or proxy as the by-laws of such
corporation may provide or, in the absence of any such provision, as the board
of directors of such corporation may determine; and
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any shares voted by an officer, agent, or proxy of such corporation shall be
presumed to be voted with due authority in the absence of express notice to the
contrary given in writing to the Secretary or other officer of the Corporation.
Shares of the Corporation standing in the name of a deceased person, a
minor, or an incompetent, may be voted by such person's administrator, executor,
guardian, or conservator, as the case may be, either in person or by proxy,
without the necessity to transfer such shares into the name of such fiduciary,
provided that such fiduciary files proper evidence of his incumbency or office
with the Secretary of the Corporation. Shares standing in the name of a trustee
may be voted by him either in person or by proxy.
Shares of the Corporation which have been pledged by a shareholder shall
continue to be voted by him until such shares have been transferred into the
name of the pledgee.
Shares of the Corporation belonging to the Corporation itself shall not be
voted, directly or indirectly, at any meeting of the shareholders and shall not
be considered in determining the total number of outstanding shares at any given
time.
SECTION 2.11 NO CUMULATIVE VOTING. In all elections for Directors, no
shareholder shall have the right to cumulate their votes for the Directors to be
elected except as otherwise specifically provided in the Corporation's
Certificate of Incorporation.
SECTION 2.12 WAIVER OF NOTICE. Whenever any notice is required to be given
to any shareholder under the DGCL, the Certificate of Incorporation, or these
By-Laws, a waiver thereof in writing by the shareholder entitled to such notice,
signed at any time before, at or after the time of the meeting, shall be deemed
equivalent to the giving of such notice. A shareholder's attendance at a
meeting, in person or by proxy, waives objection to both of the following:
(A) Lack of notice or defective notice of the meeting, unless the
shareholder at the beginning of the meeting or promptly upon arrival objects to
holding the meeting or transacting business at the meeting.
(B) Consideration of a particular matter at the meeting that is not
within the purpose described in the meeting notice, unless the shareholder
objects to considering the matter when it is presented.
ARTICLE III. BOARD OF DIRECTORS
SECTION 3.1 GENERAL POWERS. Subject to any limitations imposed by the DGCL
or the Corporation's Certificate of Incorporation, the business and affairs of
the Corporation shall be managed under the direction of its Board of Directors.
SECTION 3.2 NUMBER, TENURE, AND QUALIFICATIONS. The number of Directors of
the Corporation shall be six (6) or such other number as may be fixed by
resolution of the Board of Directors from time to time. The number of Directors
shall be deemed increased or decreased automatically without any action by the
shareholders or Directors as provided in the Corporation's Certificate of
Incorporation with respect to (i) the rights of the holders of any series of
Preferred Stock to elect Directors, and (ii) the rights of the holders of Class
C Common
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Stock to elect one (1) Director, but no decrease shall have the effect of
reducing the term of any incumbent Director except as otherwise provided in the
Certificate of Incorporation. Each Director shall hold office until the next
succeeding annual meeting of the shareholders or until his successor has been
elected and qualified. A director may resign at any time by delivering a written
resignation to the Board of Directors, to the Chairman, or to the Corporation
through the Secretary or otherwise. Directors need not be residents of the State
of Delaware or shareholders of the Corporation. The terms of office of the Board
of Directors shall be and is divided into three classes: Class I, Class II, and
Class III. The Class I term will expire at the annual meeting of shareholders to
be held in 2003; the Class II term will expire at the annual meeting of
shareholders to be held in 2004; and the Class III term will expire at the
annual meeting of shareholders to be held in 2005. At each annual meeting of
shareholders after the initial classification, the successors to directors whose
term will then expire will be elected to serve from the time of election and
qualification until the third annual meeting following election. The
directorships will be distributed among the three classes so that, as nearly as
possible, each class will consist of one-third (1/3) of the directors.
SECTION 3.3 REGULAR MEETINGS. A regular meeting of the Board of Directors
shall be held, without other notice than this By-Law, immediately after, and at
the same place as, the annual meeting of the shareholders. The Board of
Directors may provide, by resolution, for the holding of additional regular
meetings of the Board of Directors, either within or without the State of
Delaware, without other notice than such resolution.
SECTION 3.4 SPECIAL MEETINGS. Special meetings of the Board of Directors
may be called by or at the request of the Chairman of the Corporation or any two
(2) Directors. The person or persons authorized to call special meetings of the
Board of Directors may fix any place, either within or without the State of
Delaware, as the place for holding any special meeting of the Board of Directors
called by them.
SECTION 3.5 MEETINGS BY TELEPHONE OR OTHER COMMUNICATION TECHNOLOGY.
(A) Any or all Directors may participate in a regular or special
meeting or in a committee meeting of the Board of Directors by, or conduct the
meeting through the use of, telephone or any other means of communication by
which all participating Directors may simultaneously hear each other during the
meeting.
(B) If a meeting will be conducted through the use of any means
described in paragraph (A), all participating Directors shall be informed that a
meeting is taking place at which official business may be transacted. A Director
participating in a meeting by any means described in paragraph (A) is deemed to
be present in person at the meeting.
SECTION 3.6 NOTICE OF MEETINGS. Except as otherwise provided in the
Certificate of Incorporation or the DGCL, notice of the date, time and place of
any special meeting of the Board of Directors and of any special meeting of a
committee of the Board shall be given orally or in writing to each Director or
committee member at least forty-eight (48) hours prior to the meeting. The
notice need not describe the purpose of the meeting. Notice may be communicated
in person, by telephone, telegraph or facsimile, or by mail or private carrier.
Oral
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notice is effective when communicated to the director or to any person answering
the director's business or home telephone, or when left on the director's
answering machine or voice-mail system at home or place of business. Written
notice is effective at the earliest of the following: (a) when received; (b)
five (5) days after its deposit in the U.S. Mail, if mailed postpaid and
correctly addressed; (c) on the date shown on the return receipt, if sent by
registered or certified mail, return receipt requested, and the receipt is
signed by or on behalf of the addressee; (d) at the time a facsimile
transmission is completed, if sent by facsimile to the Director's home or place
of business. Whenever any notice is required to be given to any Director of the
Corporation under the DGCL, the Certificate of Incorporation, or these By-Laws,
a waiver thereof in writing by the Director entitled to such notice, signed at
any time before, at or after the time of meeting, shall be deemed equivalent to
the giving of such notice. The attendance of a Director at any meeting of the
Board of Directors shall constitute a waiver of notice of the meeting, except
where a Director attends for the express purpose of objecting to the transaction
of any business at the meeting on the grounds that the meeting was not lawfully
called or convened.
SECTION 3.7 QUORUM. A majority of the number of Directors fixed by these
By-Laws shall constitute a quorum for the transaction of business at any meeting
of the Board of Directors; provided, however, that if less than a majority of
such number of Directors are present, a majority of the Directors present may
adjourn the meeting from time to time without further notice. A majority of the
number of Directors appointed to serve on a committee shall constitute a quorum
of the committee.
SECTION 3.8 MAJORITY ACTION. The act of a majority of the Directors
present at a meeting of the Board of Directors at which a quorum is present
shall be the act of the Board of Directors (unless the act of a greater number
of Directors is required by the Certificate of Incorporation). A Director of the
Corporation who is present at a meeting of the Board of Directors at which
action is taken shall be conclusively presumed to have assented to the action so
taken unless his dissent to such action is entered in the minutes of the
meeting, or he files a written dissent to such action with the person acting as
the secretary of the meeting before the adjournment thereof, or he forwards his
dissent, by registered or certified mail, to the Secretary of the Corporation
not later than two (2) days after the adjournment of the meeting. This right to
dissent may not be exercised by any Director who voted in favor of such action.
SECTION 3.9 CONDUCT OF MEETINGS. The Chairman, or in his or her absence,
any Director chosen by the Directors present, shall call meetings of the Board
of Directors to order and shall chair the meeting. The Secretary of the
Corporation shall act as secretary of all meetings of the Board of Directors,
but in the absence of the Secretary, the presiding officer may appoint any
assistant secretary or any Director or other person present to act as secretary
of the meeting.
SECTION 3.10 VACANCIES. Except as otherwise provided in the Certificate of
Incorporation, any vacancy occurring in the Board of Directors, and any
directorship to be filled by reason of an increase in the number of Directors,
shall be filled by election at the annual meeting of the shareholders or at a
special meeting of the shareholders called for such purpose. Until such time as
the vacancy is filled by the shareholders, the Board of Directors may fill the
vacancy or, if the Directors remaining in office constitute fewer than a quorum
of the Board of
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Directors, such Directors may fill the vacancy by the affirmative vote of a
majority of the Directors remaining in office. A Director elected to fill a
vacancy shall serve for the unexpired term of his predecessor in office and
until his successor is elected and qualified.
SECTION 3.11 COMPENSATION. By resolution adopted by the affirmative vote
of a majority of the Directors then in office, and regardless of the personal
interest of any Director, the Board of Directors may establish reasonable
compensation of all Directors for services rendered to the Corporation as
Directors, officers, or otherwise. By a like resolution, the Board of Directors
may authorize the payment to all Directors of their respective expenses, if any,
reasonably incurred in attending any regular or special meeting of the Board of
Directors.
SECTION 3.12 COMMITTEES. By resolution adopted by the affirmative vote of
a majority of Directors then in office, the Board of Directors may designate one
or more committees, each committee to consist of two (2) or more Directors
elected by the Board of Directors, which, to the extent provided in such
resolution (as initially adopted and as thereafter supplemented or amended by
further resolution adopted by a like vote) shall have and may exercise (when the
Board of Directors is not in session) all of the authority and powers of the
Board of Directors in the management of the business and affairs of the
Corporation provided, however, that no such committee shall have or exercise the
authority or powers of the Board of Directors with respect to the following: (i)
approving or adopting, or recommending to the stockholders, any action or matter
expressly required by the DGCL to be submitted to stockholders for approval or
(ii) adopting, amending, or repealing any bylaw of the Corporation. The Board of
Directors may elect one or more of its members as alternate members of any such
committee, who may take the place of any absent member or members at any meeting
of such committee upon request by the President of the Corporation or the
chairman of such meeting. Each such committee shall fix its own rules governing
the conduct of its activities and shall make such reports of its activities to
the Board of Directors as the Board of Directors may request.
SECTION 3.13 INFORMAL ACTION BY DIRECTORS OR COMMITTEES. Any action
required by the DGCL, the Certificate of Incorporation, or these By-Laws to be
taken at a meeting of the Board of Directors or any committee thereof, or any
other action which may be taken at a meeting of the Board of Directors or any
committee thereof, may be taken without a meeting if a consent in writing,
setting forth the action so taken, shall be signed by all of the Directors or
committee members, as the case may be, entitled to vote with respect to the
subject matter thereof. Such consent shall have the same force and effect as a
unanimous vote of all of the members of the Board of Directors or committee
thereof, as the case may be, and may be stated as such in any document filed
with the Secretary of State under the DGCL.
ARTICLE IV. OFFICERS
SECTION 4.1 PRINCIPAL OFFICERS. The principal officers of the Corporation
may include an Chairman, a President, one or more Vice-Presidents (the number of
which shall be determined by the Board of Directors), a Secretary, and a
Treasurer, each of whom shall be elected by the Board of Directors. The Board of
Directors may elect or appoint such other officers and assistant officers as may
be deemed necessary or desirable. One person may hold any two or more offices.
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SECTION 4.2 ELECTION AND TERM OF OFFICE. Subject to Section 4.4, below,
the officers of the Corporation shall be elected annually by the Board of
Directors at the regular meeting of the Board of Directors held after the annual
meeting of the shareholders; and each officer shall hold office until his
successor is elected and qualified or until his death or his resignation or
removal in the manner provided in Section 4.3, below. If the election of
officers is not held at such regular meeting of the Board of Directors, the
election shall be held as soon thereafter as may be convenient. Election or
appointment of an officer shall not of itself create any contract rights.
SECTION 4.3 REMOVAL. Any officer elected or appointed by the Board of
Directors may be removed by the Board of Directors, with or without cause, but
such removal shall be without prejudice to the contract rights, if any, or the
person so removed. Any officer may resign at any time by giving written notice
to the Board of Directors or to the Chairman, President or Secretary of the
Corporation. The resignation shall take effect on the date of receipt of the
notice of resignation or at any later time specified therein; and unless the
notice of resignation specifies otherwise, the resignation shall become
effective without the necessity of acceptance by the Board of Directors.
SECTION 4.4 VACANCIES. If any office becomes vacant by reason of the
death, resignation, or removal of the incumbent, the Board of Directors shall
elect a successor who shall hold office for the unexpired term of his
predecessor and until his successor is elected and qualified.
SECTION 4.5 CHAIRMAN. The Chairman shall, when present, preside at all
meetings of the shareholders and of the Board of Directors. The Chairman shall
have and such other duties as may be prescribed by the Board of Directors from
time to time.
SECTION 4.6 PRESIDENT. The President shall be the chief operating officer
of the Corporation and, subject to the control of the Board of Directors, shall
in general supervise and control all of the business and affairs of the
Corporation. The President shall have the authority to sign certificates for
shares of the Corporation's capital stock and deeds, mortgages, bonds,
contracts, or other instruments necessary or proper to be executed in the course
of the Corporation's regular business or which the Board of Directors has
authorized to be executed, except in cases where the signing and execution
thereof shall be expressly delegated by the Board of Directors or by these
By-Laws to some other officer or agent of the Corporation, or shall be required
by law to be otherwise signed or executed; and in general shall perform all
duties incident to the office of president and such other duties as may be
prescribed by the Board of Directors from time to time. Except as otherwise
provided by the DGCL or the Board of Directors, the President may authorize any
Vice-President or other officer or agent of the Corporation to sign, execute and
acknowledge such documents or instruments in his place and stead.
SECTION 4.7 ABSENCE OF THE CHAIRMAN. The President shall, in the absence
of the Chairman, preside at all meetings of the shareholders and of the Board of
Directors. In the absence of the Chairman or in the event of his death,
inability or refusal to act, the President shall perform the duties of the
Chairman, and when so acting, shall have all the powers of and be subject to all
the restrictions upon the Chairman.
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SECTION 4.8 VICE-PRESIDENTS. The Board of Directors may appoint
Vice-Presidents which may be designated as Executive Vice Presidents or
Vice-Presidents. In the absence of the President or in the event of his death,
inability or refusal to act, the Vice-President, if one has been elected (or in
the event that there is more than one Vice-President, the Vice-Presidents in the
order designated at the time of their appointment, or in the absence of any
designation, then in the order of their appointment), shall perform the duties
of the President, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the President. Any Vice-President may sign
certificates for shares of the Corporation's capital stock, the issuance of
which have been authorized by resolution of the Board of Directors; and shall
perform such other duties as from time to time may be assigned to him by the
Chairman or by the Board of Directors.
SECTION 4.9 THE SECRETARY. The Secretary shall: (a) keep the minutes of
the proceedings of the shareholders and of the Board of Directors in one or more
books provided for that purpose; (b) see that all notices are duly given in
accordance with the provisions of these By-Laws or as required by the DGCL; (c)
be custodian of the corporate records and of any seal of the Corporation and, if
there is a seal of the Corporation, see that it is affixed to all documents, the
execution of which on behalf of the Corporation under its seal is duly
authorized; (d) when requested or required, authenticate any records of the
Corporation; (e) keep a register of the post office address of each shareholder
which shall be furnished to the Secretary by such shareholder or delegate that
responsibility to a stock transfer agent approved by the Board of Directors; (f)
sign, with the President or a Vice-President, certificates for shares of the
Corporation's capital stock, the issuance of which has been authorized by
resolution of the Board of Directors; (g) have general charge of the stock
transfer books of the Corporation; and (h) in general perform all duties
incident to the office of secretary and such other duties as from time to time
may be assigned to him by the President or by the Board of Directors.
SECTION 4.10 TREASURER. The Treasurer shall: (a) have charge and custody
of and be responsible for all funds and securities of the Corporation; (b)
receive and give receipts for moneys due and payable to the Corporation from any
source whatsoever, and deposit all such moneys in the name of the Corporation in
such banks, trust companies, or other depositories as shall be selected by the
Board of Directors; and (c) in general perform all of the duties incident to the
office of treasurer and such other duties as from time to time may be assigned
to him by the President or by the Board of Directors. If required by the Board
of Directors, the Treasurer shall give a bond for the faithful discharge of his
duties in such sum and with such surety or sureties as the Board of Directors
shall require.
SECTION 4.11 ASSISTANT SECRETARIES AND ASSISTANT TREASURERS. The Assistant
Secretaries, when authorized by the Board of Directors, may sign with the
President or a Vice-President certificates for shares of the Corporation the
issuance of which shall have been authorized by a resolution of the Board of
Directors. The Assistant Treasurers shall respectively, if required by the Board
of Directors, give bonds for the faithful discharge of their duties in such sums
and with such sureties as the Board of Directors shall determine. The Assistant
Secretaries and Assistant Treasurers, in general, shall perform such duties as
shall be assigned to them by the Secretary or the Treasurer, respectively, or by
the President or the Board of Directors.
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SECTION 4.12 ASSISTANTS AND ACTING OFFICERS. The Board of Directors and
the President shall each have the power to appoint any person to act as
assistant to any officer, or as agent for the Corporation in the officer's
stead, or to perform the duties of such officer whenever for any reason it is
impracticable for such officer to act personally, and such assistant or acting
officer or other agent so appointed shall have the power to perform all the
duties of the office to which that person is so appointed to be assistant, or as
to which he is so appointed to act, except as such power may be otherwise
defined or restricted by the Board of Directors or President.
SECTION 4.13 SALARIES. The salaries of officers of the Corporation shall
be fixed from time to time by the Board of Directors, and no officer shall be
prevented from receiving a salary by reason of the fact that he is also a
Director of the Corporation.
ARTICLE V. CERTIFICATES FOR SHARES AND THEIR TRANSFER
SECTION 5.1 CERTIFICATES FOR SHARES. Certificates representing shares of
the Corporation shall be in such form as may be determined by the Board of
Directors. Such certificates shall be signed, either manually or in facsimile,
by the President or a Vice-President and by the Secretary or Assistant
Secretary. All certificates for shares shall be consecutively numbered or
otherwise identified. The name and post office address of the person to whom the
shares represented thereby are issued, with the number of shares and date of
issuance, shall be entered on the stock transfer books of the Corporation. All
certificates surrendered to the Corporation for transfer shall be canceled and
no new certificates shall be issued until the former certificate for a like
number of shares has been surrendered and canceled, except that in the case of a
lost, destroyed, or mutilated certificate, a new certificate may be issued
therefor upon such terms and indemnity to the Corporation as the Board of
Directors may prescribe.
SECTION 5.2 TRANSFER OF SHARES. Transfers of shares of the Corporation
shall be made on the stock transfer books of the Corporation only by the holder
of record thereof, or by his legal representative or his attorney so authorized
by a duly executed power-of-attorney filed with the Secretary of the
Corporation, upon surrender for cancellation of the certificate for such shares
and subject to such limitations as may be set forth in the Certificate of
Incorporation. Prior to due presentment of a certificate for shares for
registration of transfer, the Corporation may treat the registered owner of such
shares as the person exclusively entitled to vote, to receive notifications, and
otherwise to exercise all of the rights and powers of the owner of such shares.
Where a certificate for shares is presented to the Corporation with a request to
register for transfer, the Corporation shall not be liable to the owner or any
other person suffering loss as a result of such registration of transfer if
there were on or with the certificate the necessary endorsements and if the
Corporation had no duty to inquire into adverse claims or had discharged any
such duty. The Corporation may require reasonable assurance that the
endorsements are genuine and effective and in compliance with such other
regulations as may be prescribed by the Board of Directors.
SECTION 5.3 RESTRICTIONS ON TRANSFER. The face or reverse side of each
certificate representing shares shall bear a conspicuous notation of any
restriction upon the transfer of such shares imposed by the Corporation.
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SECTION 5.4 LOST, DESTROYED OR STOLEN CERTIFICATES. Where the owner claims
that his or her certificate for shares has been lost, destroyed or wrongfully
taken, a new certificate shall be issued in place thereof if the owner (a) so
requests before the Corporation has notice that such shares have been acquired
by a bona fide purchaser; and (b) if required by the Corporation, files with the
Corporation a sufficient indemnity bond; and (c) satisfies such other reasonable
requirements as may be prescribed by or under the authority of the Board of
Directors.
SECTION 5.5 CONSIDERATION FOR SHARES. The shares of the Corporation may be
issued for such consideration as shall be fixed from time to time and determined
to be adequate by the Board of Directors, provided that any shares having a par
value shall not be issued for a consideration less than the par value thereof.
The consideration may consist of any tangible or intangible property or benefit
to the Corporation, including cash, promissory notes, services performed,
contracts for services to be performed, or other securities of the Corporation.
When the Corporation receives the consideration for which the Board of Directors
authorized the issuance of shares, such shares shall be deemed to be fully paid
and nonassessable.
SECTION 5.6 STOCK REGULATIONS. The Board of Directors shall have the power
and authority to make all such rules and regulations not inconsistent with the
statutes of the State of Delaware as it may deem expedient concerning the issue,
transfer and registration of certificates representing shares of the
Corporation, including the appointment or designation of one or more stock
transfer agents and one or more registrars.
ARTICLE VI. INDEMNIFICATION OF DIRECTORS, OFFICERS AND EMPLOYEES
SECTION 6.1 RIGHT TO INDEMNIFICATION. Each person who was or is made a
party or is threatened to be made a party to or is otherwise involved in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), by reason of the fact that he or she
is or was a director or an officer of the Corporation or is or was serving at
the request of the Corporation as a director, officer, employee or agent of
another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to an employee benefit plan
(hereinafter an "indemnitee"), whether the basis of such proceeding is alleged
action in an official capacity as a director, officer, employee or agent or in
any other capacity while serving as a director, officer, employee or agent,
shall be indemnified and held harmless by the Corporation to the fullest extent
permitted or required by the Delaware General Corporation Law, as the same
exists or may hereafter be amended (but, in the case of any such amendment, only
to the extent that such amendment permits the Corporation to provide broader
indemnification rights than such law permitted the Corporation to provide prior
to such amendment), against all expense, liability and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts
paid in settlement) reasonably incurred or suffered by such indemnitee in
connection therewith; provided, however, that, except as provided in Section 3
of this Article VI with respect to proceedings to enforce rights to
indemnification, the Corporation shall indemnify any such indemnitee in
connection with a proceeding (or part thereof) initiated by such indemnitee only
if such proceeding (or part thereof) was authorized by the Board of Directors of
the Corporation.
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SECTION 6.2 RIGHT TO ADVANCEMENT OF EXPENSES. The right to indemnification
conferred in Section 1 of this Article VI shall include the right to be paid by
the Corporation the expenses (including, without limitation, attorneys' fees and
expenses) incurred in defending any such proceeding in advance of its final
disposition (hereinafter an "advancement of expenses"); provided, however, that,
if the Delaware General Corporation Law so requires, an advancement of expenses
incurred by an indemnitee in his or her capacity as a director or officer (and
not in any other capacity in which service was or is rendered by such
indemnitee, including, without limitation, service to an employee benefit plan)
shall be made only upon delivery to the Corporation of an undertaking
(hereinafter an "undertaking"), by or on behalf of such indemnitee, to repay all
amounts so advanced if it shall ultimately be determined by final judicial
decision from which there is no further right to appeal (hereinafter a "final
adjudication") that such indemnitee is not entitled to be indemnified for such
expenses under this Section 2 or otherwise. The rights to indemnification and to
the advancement of expenses conferred in Sections 1 and 2 of this Article VIII
shall be contract rights and such rights shall continue as to an indemnitee who
has ceased to be a director, officer, employee or agent and shall inure to the
benefit of the indemnitee's heirs, executors and administrators.
SECTION 6.3 RIGHT OF INDEMNITEE TO BRING SUIT. If a claim under Section 1
or 2 of this Article VI is not paid in full by the Corporation within 60
calendar days after a written claim has been received by the Corporation, except
in the case of a claim for an advancement of expenses, in which case the
applicable period shall be 20 calendar days, the indemnitee may at any time
thereafter bring suit against the Corporation to recover the unpaid amount of
the claim. If successful in whole or in part in any such suit, or in a suit
brought by the Corporation to recover an advancement of expenses pursuant to the
terms of an undertaking, the indemnitee shall be entitled to be paid also the
expense of prosecuting or defending such suit. In (i) any suit brought by the
indemnitee to enforce a right to indemnification hereunder (but not in a suit
brought by the indemnitee to enforce a right to an advancement of expenses) it
shall be a defense that, and (ii) any suit brought by the Corporation to recover
an advancement of expenses pursuant to the terms of an undertaking, the
Corporation shall be entitled to recover such expenses upon a final adjudication
that, the indemnitee has not met any applicable standard for indemnification set
forth in the Delaware General Corporation Law. Neither the failure of the
Corporation (including its Board of Directors, independent legal counsel or
stockholders) to have made a determination prior to the commencement of such
suit that indemnification of the indemnitee is proper in the circumstances
because the indemnitee has met the applicable standard of conduct set forth in
the Delaware General Corporation Law, nor an actual determination by the
Corporation (including its Board of Directors, independent legal counsel or
stockholders) that the indemnitee has not met such applicable standard of
conduct, shall create a presumption that the indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by the
indemnitee, be a defense to such suit. In any suit brought by the indemnitee to
enforce a right to indemnification or to an advancement of expenses hereunder,
or brought by the Corporation to recover an advancement of expenses pursuant to
the terms of an undertaking, the burden of proving that the indemnitee is not
entitled to be indemnified, or to such advancement of expenses, under this
Article VIII or otherwise shall be on the Corporation.
SECTION 6.4 NON-EXCLUSIVITY OF RIGHTS. The rights to indemnification and
to the advancement of expenses conferred in this Article VI shall not be
exclusive of any other right which any person may have or hereafter acquire
under any statute, the Corporation's
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Certificate of Incorporation, By-laws, agreement, vote of stockholders or
disinterested directors or otherwise.
SECTION 6.5 INSURANCE. The Corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or other
enterprise against any expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
SECTION 6.6 INDEMNIFICATION OF EMPLOYEES AND AGENTS OF THE CORPORATION.
The Corporation may, to the extent authorized from time to time by the Board of
Directors, grant rights to indemnification and to the advancement of expenses to
any employee or agent of the Corporation to the fullest extent of the provisions
of this Article with respect to the indemnification and advancement of expenses
of directors and officers of the Corporation.
ARTICLE VII. AMENDMENTS
SECTION 7.1 AMENDMENT BY DIRECTORS OR SHAREHOLDERS. These By-Laws may be
altered, amended, or repealed and new By-Laws may be adopted in whole or in part
by the shareholders. These By-Laws may be altered, amended, or repealed, and new
By-Laws may be adopted in whole or in part by the Board of Directors,
notwithstanding the fact that these By-Laws may have been adopted by the
shareholders of the Corporation. The By-Laws may contain any provisions for the
regulation and management of the Corporation's affairs not inconsistent with law
or the Certificate of Incorporation.
SECTION 7.2 IMPLIED AMENDMENTS. Any action taken or authorized by the
shareholders of the Corporation by the affirmative vote of the holders of the
majority of the outstanding shares of each class of the Corporation entitled to
vote thereon, or by the Board of Directors, shall be given the same effect as
though these By-Laws had been temporarily amended so far as is necessary to
permit the specific action so taken or authorized.
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