1
EXHIBIT 3.2
AMENDED AND RESTATED BY-LAWS
OF
LAUNCH MEDIA, INC.
ARTICLE I.
OFFICES
Section 1. The registered office of the Corporation shall be in the City
of Wilmington, State of Delaware. The Corporation may also have offices at such
other places both within and without the State of Delaware as the Board of
Directors may from time to time determine or the business of the Corporation may
require.
ARTICLE II.
STOCKHOLDERS
Section 1. Time and Place of Meetings. All meetings of the stockholders
for the election of directors or for any other purpose shall be held at such
time and place, within or without the State of Delaware, as shall be designated
by the Board of Directors. In the absence of a designation of a place for any
such voting by the Board of Directors, each such meeting shall be held at the
principal office of the Corporation.
Section 2. Annual Meetings. An annual meeting of stockholders shall be
held for the purpose of electing directors and transacting such other business
as may properly be brought before the meeting. The date of the annual meeting
shall be determined by the Board of Directors.
Section 3. Special Meetings. Special meetings of stockholders may be
called at any time by the Board of Directors, the Chairman of the Board or the
President and Chief Executive Officer. Business transacted at any special
meeting of stockholders shall be confined to the purpose or purposes stated in
the notice of meeting.
Section 4. Notice of Meetings. Written notice of each meeting of the
stockholders stating the place, date and time of the meeting shall be given not
less than ten (10) nor more than sixty (60) days before the date of the meeting,
to each stockholder entitled to vote at such meeting. The notice of any special
meeting of stockholders shall state the purpose or purposes for which the
meeting is called. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice. Neither the business to
be transacted at, nor the purpose of, an annual or special meeting of
stockholders need be specified in any written waiver of notice.
2
Section 5. Quorum; Adjournments. The holders of a majority of the stock
issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business, except as otherwise required by
these By-laws, the Certificate of Incorporation or the Delaware General
Corporation Law as from time to time in effect (the "Delaware Law"). If a quorum
is not represented, the holders of the stock present in person or represented by
proxy at the meeting and entitled to vote thereat shall have power, by the
affirmative vote of the stockholders of a majority of such stock, to adjourn the
meeting to another time and/or place, without notice other than announcement at
the meeting, except as hereinafter provided, until a quorum shall be present or
represented. At such adjourned meeting, at which a quorum shall be present or
represented, any business may be transacted which might have been transacted at
the original meeting. If 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 meeting. Withdrawal of stockholders from any meeting
shall not cause the failure of a duly constituted quorum at such meeting.
Section 6. Voting.
(a) At all meetings of the stockholders, a stockholder shall be
entitled to vote, in person, or by proxy printed in an instrument in writing
subscribed by the stockholder or otherwise appointed in accordance with Section
212 of the Delaware Law, each share of voting stock owned by such stockholder of
record on the record date for the meeting. Each stockholder shall be entitled to
one vote for each share of voting stock held by such stockholder, unless
otherwise provided in the Delaware Law or the Certificate of Incorporation.
(b) When a quorum is present at any meeting, the affirmative vote of
the holders of a majority of the stock having voting power present in person or
represented by proxy and voting shall decide any question brought before such
meeting, unless the question is one upon which, by express provision of law or
of the Certificate of Incorporation, a different vote is required, in which case
such express provision shall govern and control the decision of such question.
Any stockholder who is in attendance at a meeting of stockholders either in
person or by proxy, but who abstains from the vote on any such matter, shall not
be deemed present or represented at such meeting for purposes of the preceding
sentence with respect to such vote, but shall be deemed present or represented
at such meeting for all other purposes.
2
3
Section 7. Voting Procedures and Inspectors of Election.
(a) The Corporation shall, in advance of any meeting of
stockholders, appoint one or more inspectors to act at the meeting and make a
written report thereof. The Corporation may designate one or more persons as
alternate inspectors to replace any inspector who fails to act. If no inspector
or alternate is able to act at a meeting of stockholders, the person presiding
at the meeting shall appoint one or more inspectors to act at the meeting. Each
inspector, before entering upon the discharge of his duties, shall take and sign
an oath faithfully to execute the duties of inspector with strict impartiality
and according to the best of his ability.
(b) The inspectors shall (i) ascertain the number of shares
outstanding and the voting power of each, (ii) determine the shares represented
at a meeting and the validity of proxies and ballots, (iii) count all votes and
ballots, (iv) determine and obtain for a reasonable period a record of the
disposition of any challenges made to any determination by the inspectors, and
(v) certify their determination of the number of shares represented at the
meeting, and their count of all votes and ballots. The inspectors may appoint or
retain other persons or entities to assist the inspectors in the performance of
the duties of the inspectors.
(c) The date and time of the opening and the closing of the polls
for each matter upon which the stockholders will vote at a meeting shall be
announced at the meeting. No ballot, proxies or votes, nor any revocations
thereof or changes thereto, shall be accepted by the inspectors after the
closing of the polls unless the Court of Chancery upon application by a
stockholder shall determine otherwise.
(d) In determining the validity and counting of proxies and ballots,
the inspectors shall be limited to an examination of the proxies, any envelopes
submitted with those proxies, any information provided in accordance with
Section 212(c)(2) of the Delaware Law, ballots and the regular books and records
of the Corporation, except that the inspectors may consider other reliable
information for the limited purpose of reconciling proxies and ballots submitted
by or on behalf of banks, brokers, their nominees or similar persons which
represent more votes than the holder of a proxy is authorized by the record
owner to cast or more votes than the stockholder holds of record. If the
inspectors consider other reliable information for the limited purpose permitted
herein, the inspectors at the time they make their certification pursuant to
subsection (b)(v) of this Section 8 shall specify the precise information
considered by them including the person or persons from whom they obtained the
information, when the information was obtained, the means by which the
information was obtained and the basis for the inspectors' belief that such
information is accurate and reliable.
Section 8. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare
and make, at least ten days before every meeting of stockholders, a complete
list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten days prior to the
meeting, either at a place within the city where the meeting
3
4
is to be held, which place shall be specified in the notice of the meeting, or,
if not so specified, at the place where the meeting is to be held. The list
shall also be produced and kept at the time and place of the meeting during the
whole time thereof, and may be inspected by any stockholder of the Corporation
who is present.
Section 9. Stock Ledger. The stock ledger of the Corporation shall be
the only evidence as to who are the stockholders entitled to examine the stock
ledger, the list required by Section Section 9 of this Article ARTICLE II or the
books of the Corporation, or to vote in person or by proxy at any meeting of
stockholders.
Section 10. Order of Business. The order of business at all meetings of
the stockholders shall be as determined by the chairman of the meeting.
ARTICLE III.
DIRECTORS
Section 1. General Powers. The business and affairs of the Corporation
shall be managed by or under the direction of a Board of Directors, who may
exercise all of the powers of the Corporation except as otherwise provided by
law or the Certificate of Incorporation. In the event of a vacancy in the Board
of Directors, the remaining directors, except as otherwise provided by law, may
exercise the powers of the full Board until the vacancy is filled.
Section 2. Number and Term of Office. The number of directors shall
initially be five (5) and, thereafter, shall be fixed from time to time
exclusively by the Board of Directors pursuant to a resolution adopted by a
majority of the total number of authorized directors (whether or not there exist
any vacancies in previously authorized directorships at the time any such
resolution is presented to the Board for adoption). All directors shall hold
office until their respective successors are elected, except in the case of the
death, resignation or removal of any director.
Section 3. Vacancies and Newly Created Directorships. Subject to the
rights of the holders of any series of Preferred Stock then outstanding, newly
created directorships resulting from any increase in the authorized number of
directors or any vacancies in the Board of Directors resulting from death,
resignation, retirement, disqualification or other cause (including removal from
office by a vote of the stockholders) may be filled only by a majority vote of
the directors then in office, though less than a quorum, and directors so chosen
shall hold office for a term expiring at the next annual meeting of stockholders
and until their respective successors are elected, except in the case of death,
resignation or removal of any director. No decrease in the number of directors
constituting the Board of Directors shall shorten the term of any incumbent
director.
Section 4. Place of Meetings. The Board of Directors may hold meetings,
both regular and special, either within or without the State of Delaware.
4
5
Section 5. Meetings. The Board of Directors shall hold a regular
meeting, to be known as the annual meeting, immediately following each annual
meeting of the stockholders. Other regular meetings of the Board of Directors
shall be held at such time and place as shall from time to time be determined by
the Board. No notice of regular meetings need be given, other than by
announcement at the immediately preceding regular meeting. Special meetings of
the Board may be called by the Chief Executive Officer or the President or by
the Secretary on the written request of a majority of the Board of Directors.
Notice of any special meeting of the Board shall be given at least two days
prior thereto, either in writing, or telephonically if confirmed promptly in
writing, to each director at the address shown for such director on the records
of the Corporation.
Section 6. Waiver of Notice; Business and Purpose. Notice of any meeting
of the Board of Directors may be waived in writing signed by the person or
persons entitled to such notice either before or after the time of the meeting.
The attendance of a director at any meeting shall constitute a waiver of notice
of such meeting, except where a director attends a meeting for the express
purpose of objecting to the transaction of any business because the meeting is
not lawfully called or convened and at the beginning of the meeting records such
objection with the person acting as secretary of the meeting and does not
thereafter vote on any action taken at the meeting. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting of the Board
need be specified in the notice or waiver of notice of such meeting, unless
specifically required by the Delaware Law.
Section 7. Quorum and Manner of Acting. At all meetings of the Board of
Directors a majority of the total number of directors shall constitute a quorum
for the transaction of business. If a quorum shall not be present at any meeting
of the Board of Directors, the directors present thereat may adjourn the meeting
from time to time, without notice other than announcement at the meeting, until
a quorum shall be present. The act of a majority of the directors present at any
meeting at which there is a quorum shall be the act of the Board of Directors,
except as may be otherwise specifically provided by the Delaware Law or by the
Certificate of Incorporation. Withdrawal of directors from any meeting shall not
cause the failure of a duly constituted quorum at such meeting. A director who
is in attendance at a meeting of the Board of Directors but who abstains from
the vote on any matter shall not be deemed present at such meeting for purposes
of the preceding sentence with respect to such vote, but shall be deemed present
at such meeting for all other purposes.
Section 8. Organization. The Chairman of the Board, if elected, shall
act as chairman at all meetings of the Board of Directors. If the Chairman of
the Board is not elected or, if elected, is not present, the Vice Chairman, if
any, or if no such Vice Chairman is present, a director chosen by a majority of
the directors present, shall act as chairman at such meeting of the Board of
Directors.
Section 9. Committees. The Board of Directors, by resolution adopted by
a majority of the whole Board, may designate one or more directors to constitute
an Executive Committee. The Board of Directors, by resolution adopted by a
majority of the whole Board, may create one or more other committees and appoint
one or more directors to serve on such committee or
5
6
committees. Each director appointed to serve on any such committee shall serve,
unless the resolution designating the respective committee is sooner amended or
rescinded by the Board of Directors, until the next annual meeting of the Board
or until their respective successors are designated. The Board of Directors, by
resolution adopted by a majority of the whole Board, may also designate
additional directors as alternate members of any committee to serve as members
of such committee in the place and stead of any regular member or members
thereof who may be unable to attend a meeting or otherwise unavailable to act as
a member of such committee. In the absence or disqualification of a member and
all alternate members designated to serve in the place and stead of such member,
the member or members thereof present at any meeting and not disqualified from
voting, whether or not such member or members constitute a quorum, may
unanimously appoint another director to act at the meeting in the place and
stead of such absent or disqualifed member.
The Executive Committee shall have and may exercise all the powers and
authority of the Board of Directors in the management of the business and
affairs of the Corporation between the meetings of the Board of Directors, and
any other committee may exercise the power and authority of the Board of
Directors to the extent specified by the resolution establishing such committee,
or the Certificate of Incorporation or these By-laws; provided, however, that no
committee may take any action that is expressly required by the Delaware Law or
the Certificate of Incorporation or these By-laws to be taken by the Board of
Directors and not by a committee thereof. Each committee shall keep a record of
its acts and proceedings, which shall form a part of the records of the
Corporation in the custody of the Secretary, and all actions of each committee
shall be reported to the Board of Directors at the next meeting of the Board.
Meetings of committees may be called at any time by the Chairman of the
Board, if any, the Chief Executive Officer, the President or the chairman of the
respective committee. A majority of the members of the committee shall
constitute a quorum for the transaction of business and, except as expressly
limited by this section, the act of a majority of the members present at any
meeting at which there is a quorum shall be the act of such committee. Except as
expressly provided in this section or in the resolution designating the
committee, a majority of the members of any such committee may select its
chairman, fix its rules of procedure, fix the time and place of its meetings and
specify what notice of meetings, if any, shall be given.
Section 10. Action without Meeting. Unless otherwise specifically
prohibited by the Certificate of Incorporation or these By-laws, any action
required or permitted to be taken at any meeting of the Board of Directors or of
any committee thereof may be taken without a meeting, if all members of the
Board of Directors or such committee, as the case may be, execute a consent
thereto in writing setting forth the action so taken, and the writing or
writings are filed with the minutes of proceedings of the Board of Directors or
such committee.
Section 11. Attendance by Telephone. Members of the Board of Directors,
or any committee thereof, may participate in and act at any meeting of the Board
of Directors, or such committee, as the case may be, through the use of a
conference telephone or other communications equipment by means of which all
persons participating in the meeting can hear
6
7
each other. Participation in such meeting shall constitute attendance and
presence in person at the meeting of the person or persons so participating.
Section 12. Compensation. By resolution of the Board of Directors,
irrespective of any personal interest of any of the members, the directors may
be paid their reasonable expenses, if any, of attendance at each meeting of the
Board of Directors and may be paid a fixed sum of attendance at meetings or a
stated salary as directors. These payments shall not preclude any director from
serving the Corporation in any other capacity and receiving compensation
therefor.
ARTICLE IV.
OFFICERS
Section 1. Enumeration. The officers of the Corporation shall be chosen
by the Board of Directors and shall include a Chief Executive Officer, a
President and a Secretary. The Board of Directors may also elect a Chairman of
the Board (or one or more Co-Chairmen of the Board), a Vice Chairman, a Chief
Financial Officer, a Chief Operating Officer, one or more Assistant Secretaries
and Assistant Treasurers and such other officers and agents as it may deem
appropriate. Any number of offices may be held by the same person.
Section 2. Term of Office. The officers of the Corporation shall be
elected at the annual meeting of the Board of Directors and shall hold office
until their successors are elected and qualified, or until their earlier death,
termination, resignation or removal from office. Any officer or agent of the
Corporation may be removed at any time by the Board of Directors, with or
without cause. Any vacancy in any office because of death, resignation,
termination, removal, disqualification or otherwise, may be filled by the Board
of Directors for the unexpired portion of the term.
Section 3. Chairman of the Board. The Chairman of the Board, when and if
elected, shall preside over the meetings of the Board of Directors and of the
stockholders at which he shall be present. If there be more than one, the
Co-Chairmen designated by the Board of Directors will perform such duties. The
Chairman of the Board shall perform such other duties as may be assigned to him
or them by the Board of Directors. The Chairman of the Board, if any, shall be a
member of the Board of Directors of the Corporation.
Section 4. Vice Chairman. The Vice Chairman, if any, in the absence of
the Chairman or in the event of the Chairman's inability or refusal to act,
shall have the authority to perform the duties of the Chairman and such other
duties as may from time to time be prescribed by the Board of Directors or the
Chairman of the Board. The Vice Chairman, if any, shall be a member of the Board
of Directors of the Corporation.
Section 5. Chief Executive Officer. The Board of Directors shall
designate a Chief Executive Officer. The Chief Executive Officer shall have
general responsibility for implementation of the policies of the Corporation, as
determined by the Board of Directors, and for the management, supervision,
direction and control of the business and affairs of the Corporation.
7
8
Section 6. President. In the absence of a designation of a Chief
Operating Officer by the Board of Directors, the President shall be the Chief
Operating Officer of the Corporation and shall have such functions, authority
and duties incident to the office of President and such other duties as may be
prescribed by the Board of Directors or the Chief Executive Officer. He may
execute any deed, mortgage, bond, contract or other instrument, except in cases
where the 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 executed.
Section 7. Chief Operating Officer. The Board of Directors may designate
a chief operating officer. The Chief Operating Officer shall have the
responsibilities and duties as set forth by the Board of Directors or the Chief
Executive Officer.
Section 8. Vice President. Each Vice President shall perform such duties
and have such other powers as may from time to time be prescribed by the Board
of Directors, the Chief Executive Officer or the President.
Section 9. Secretary. The Secretary shall: (a) keep a record of all
proceedings of the stockholders, the Board of Directors and any committees
thereof in one or more books provided for that purpose; (b) give, or cause to be
given, all notices that are required by law or these By-laws to be given by the
Secretary; (c) be custodian of the corporate records and, if the Corporation has
a corporate seal, of the seal of the Corporation; (d) have authority to affix
the seal of the Corporation to all instruments the execution of which requires
such seal and to attest such affixing of the seal; (e) keep a register of the
post office address of each stockholder which shall be furnished to the
secretary by such stockholder; (f) sign, with the Chairman or the Vice Chairman,
if any, or Chief Executive Officer, President or any Vice President, or any
other officer thereunto authorized by the Board of Directors, any certificates
for shares of the Corporation, or any deeds, mortgages, bonds, contracts or
other instruments which the Board of Directors has authorized to be executed by
the signature of more than one officer; (g) have general charge of the stock
transfer books of the Corporation; (h) have authority to certify as true and
correct, copies of the By-laws, or resolutions of the stockholders, the Board of
Directors and committees thereof, and of other documents of the Corporation; and
(i) in general, perform the duties incident to the office of secretary and such
other duties as from time to time may be prescribed by the Board of Directors,
the Chief Executive Officer or the President. The Board of Directors may give
general authority to any other officer to affix the seal of the Corporation and
to attest such affixing of the seal.
Section 10. Assistant Secretary. The Assistant Secretary, or if there
shall be more than one, each Assistant Secretary in the absence of the Secretary
or in the event of the Secretary's inability or refusal to act, shall have the
authority to perform the duties of the Secretary, subject to such limitations
thereon as may be imposed by the Board of Directors, and such other duties as
may from time to time be prescribed by the Board of Directors, the Chief
Executive Officer, the President or the Secretary.
8
9
Section 11. Chief Financial Officer. The Chief Financial Officer, if
any, shall be the principal accounting and financial officer of the Corporation.
The Chief Financial Officer shall: (a) have charge of and be responsible for the
maintenance of adequate books of account for the Corporation; (b) have charge
and custody of all funds and securities of the Corporation, and be responsible
therefor and for the receipt and disbursement thereof; and (c) perform the
duties incident to the office of Chief Financial Officer and such other duties
as may from time to time be prescribed by the Board of Directors, the Chief
Executive Officer or the President. The Chief Financial Officer may sign with
the Chairman or the Vice Chairman, if any, or the Chief Executive Officer,
President, or any Vice President, or any other officer thereunto authorized by
the Board of Directors, certificates for shares of the Corporation. If required
by the Board of Directors, the Chief Financial Officer shall give a bond for the
faithful discharge of his or her duties in such sum and with such surety or
sureties as the Board of Directors may determine.
Section 12. Assistant Treasurer. The Assistant Treasurer, or if there
shall be more than one, each Assistant Treasurer, in the absence of the Chief
Financial Officer or in the event of the Chief Financial Officer's inability or
refusal to act, shall have the authority to perform the duties of the Chief
Financial Officer, subject to such limitations thereon as may be imposed by the
Board of Directors, and such other duties as may from time to time be prescribed
by the Board of Directors, the Chief Executive Officer, the President or the
Chief Financial Officer.
Section 13. Other Officers and Agents. Any officer or agent who is
elected or appointed from time to time by the Board of Directors and whose
duties are not specified in these By-laws shall perform such duties and have
such powers as may from time to time be prescribed by the Board of Directors,
the Chief Executive Officer or the President.
ARTICLE V.
CERTIFICATES OF STOCK AND THEIR TRANSFER
Section 1. Form. The shares of the Corporation shall be represented by
certificates; provided, however, the Board of Directors may provide by
resolution or resolutions that some or all of any or all classes or series of
the Corporation's stock shall be uncertificated shares. Each certificate for
shares shall be consecutively numbred or otherwise identified. Certificates of
stock in the Corporation, shall be signed by or in the name of the Corporation
by the Chairman or the Vice Chairman, if any, or the Chief Executive Officer,
President, or any Vice President, or any other officer thereunto authorized by
the Board of Directors, and by the Chief Financial Officer or an Assistant
Treasurer or the Secretary or an Assistant Secretary of the Corporation. Where a
certificate is countersigned by a transfer agent, other than the Corporation or
an employee of the Corporation, or by a registrar, the signatures of one or more
officers of the Corporation may be facsimiles. In case any officer, transfer
agent or registrar who has signed or whose facsimile signature has been placed
upon a certificate shall have ceased to be such officer, transfer agent or
registrar before such certificate is issued, the certificate may be issued by
the Corporation with the same effect as if such officer, transfer agent or
registrar were such officer, transfer agent or registrar at the date of its
issue.
9
10
Section 2. Transfer. Upon surrender to the Corporation or the transfer
agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the Corporation to issue a new certificate of
stock or uncertificated shares in place of any certificate theretofore issued by
the Corporation to the person entitled thereto, cancel the old certificate and
record the transaction in its stock transfer books.
Section 3. Replacement. In case of the loss, destruction, mutilation or
theft of a certificate for any stock of the Corporation, a new certificate of
stock or uncertificated shares in place of any certificate theretofore issued by
the Corporation may be issued upon the surrender of the mutilated certificate
or, in the case of loss, destruction or theft of a certificate, upon
satisfactory proof of such loss, destruction or theft and upon such terms as the
Board of Directors may prescribe. The Board of Directors may in its discretion
require the owner of the lost, destroyed or stolen certificate, or his legal
representative, to give the Corporation a bond, in such sum and in such form and
with such surety or sureties as it may direct, to indemnify the Corporation
against any claim that may be made against it with respect to the certificate
alleged to have been lost, destroyed or stolen.
ARTICLE VI.
INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS
Section 1. Third Party Actions. 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, including all appeals (other than an
action, suit or proceeding by or in the right of the Corporation) by reason of
the fact that he is or was a director or officer, of the Corporation (and the
Corporation, in the discretion of the Board of Directors, may so indemnify a
person by reason of the fact that he is or was an employee or agent of the
Corporation or is or was serving at the request of the Corporation in any other
capacity for or on behalf of the Corporation), against expenses (including
attorneys' fees), judgments, decrees, fines, penalties, and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner which he
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 his conduct was unlawful; provided, however, the
Corporation shall be required to indemnify an officer or director in connection
with an action, suit or proceeding initiated by such person only if such action,
suit or proceeding was authorized by the Board of Directors. 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 or in a manner which he
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 his conduct was unlawful.
10
11
Section 2. Actions By or in the Right of the Corporation. 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,
including all appeals, by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that he is or was a director or
officer of the Corporation (and the Corporation, in the discretion of the Board
of Directors, may so indemnify a person by reason of the fact that he is or was
an employee or agent of the Corporation or is or was serving at the request of
the Corporation in any other capacity for or on behalf of the Corporation),
against expenses (including attorneys' fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, except that no indemnification
shall be made in respect of any claim, issue or matter as to which such person
shall have been finally adjudged to be liable for negligence or misconduct in
the performance of his duty to the Corporation unless and only to the extent
that the court in which such action or suit was brought, or any other court of
competent jurisdiction, 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 as such
court shall deem proper. Notwithstanding the foregoing, the Corporation shall be
required to indemnify an officer or director in connection with an action, suit
or proceeding initiated by such person only if such action, suit or proceeding
was authorized by the Board of Directors.
Section 3. Indemnity if Successful. To the extent that a director,
officer, employee or agent of the Corporation has been successful on the merits
or otherwise in defense of any action, suit, or proceeding referred to in
Section 1 or 2 of this Article, or in defense of any claim, issue or matter
therein, he shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection therewith.
Section 4. Standard of Conduct. Except in a situation governed by
Section 3 of this Article, any indemnification under Section 1 or 2 of this
Article (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
director, officer, employee or agent is proper in the circumstances because he
has met the applicable standard of conduct set forth in Section 1 or 2, as
applicable, of this Article. Such determination shall be made (i) by a majority
vote of directors acting at a meeting at which a quorum consisting of directors
who were not parties to such action, suit or proceeding is present, or (ii) if
such a quorum is not obtainable, or even if obtainable, a quorum of
disinterested directors so directs, by independent legal counsel in a written
opinion, or (iii) by the stockholders. The determination required by clauses (i)
and (ii) of this Section 4 may in either event be made by written consent of the
majority required by each clause.
Section 5. Expense. Expenses (including attorneys' fees) of such officer
and director hereunder indemnified actually and reasonably incurred in defending
any civil, criminal, administrative or investigative action, suit or proceeding
or threat thereof 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 person to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the Corporation as
authorized in this
11
12
Article. Such expenses (including attorneys' fees) incurred by employees and
agents may be so paid upon the receipt of the aforesaid undertaking and such
terms and conditions, if any, as the Board of Directors deems appropriate.
Section 6. Nonexclusivity. The indemnification and advancement of
expenses provided by, or granted pursuant to, other sections of this Article
shall not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may now or hereafter be entitled
under any law, by-law, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office.
Section 7. Insurance. The Corporation may 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, partnership,
joint venture, trust or other enterprise against any liability asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the Corporation would have the power to indemnify him
against such liability under the provision of the Delaware Law.
Section 8. Definitions. For purposes of this Article, 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 the power and authority to indemnify any or all of its directors,
officers, employees and agents, so that any person who was a director, officer,
employee or agent of such constituent corporation, or was serving at the request
of such constituent corporation in any other capacity, shall stand in the same
position under the provisions of this Article with respect to the resulting or
surviving corporation as such person would have had with respect to such
constituent corporation if its separate existence had continued as such
corporation was constituted immediately prior to such merger.
For purposes of this Article, references to "other capacities" shall
include serving as a trustee or agent for any employee benefit plan; references
to "fines" shall include any excise taxes assessed on a person with respect to
an 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. A person who acted in good faith and in a
manner he or she reasonably believed to be in the best interests 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.
Section 9. Severability. If any provision hereof is invalid or
unenforceable in any jurisdiction, the other provisions hereof shall remain in
full force and effect in such jurisdiction, and the remaining provisions hereof
shall be liberally construed to effectuate the provisions
12
13
hereof, and the invalidity of any provision hereof in any jurisdiction shall not
affect the validity or enforceability of such provision in any other
jurisdiction.
Section 10. Amendment. The right to indemnification conferred by this
Article shall be deemed to be a contract between the Corporation and each person
referred therein until amended or repealed, but no amendment to or repeal of
these provisions shall apply to or have any effect on the right to
indemnification of any person with respect to any liability or alleged liability
of such person for or with respect to any act or omission of such person
occurring prior to such amendment or repeal.
ARTICLE VII.
GENERAL PROVISIONS
Section 1. Fiscal Year. The fiscal year of the Corporation shall be
fixed from time to time by resolution of the Board of Directors.
Section 2. Corporation Seal. The corporate seal, if any, of the
Corporation shall be in such form as may be approved from time to time by the
Board of Directors. The seal may be used by causing it or a facsimile thereof to
be impressed or affixed or in any other manner reproduced.
Section 3. Notices and Mailings. Except as otherwise provided in the
Act, the Articles of Incorporation or these By-laws, all notices required to be
given by any provision of these By-laws shall be deemed to have been given (i)
when received, if given in person, (ii) on the date of acknowledgment of
receipt, if sent by telex, facsimile or other wire transmission, (iii) one day
after delivery, properly addressed, to a reputable courier for same day or
overnight delivery or (iv) three days after being deposited, properly addressed,
in the U.S. Mail, certified or registered mail, postage prepaid.
Section 4. Waiver of Notice. Whenever any notice is required to be given
under the Delaware Law or the provisions of the Certificate of Incorporation or
these By-laws, a waiver thereof in writing, signed by the person or persons
entitled to said notice, whether before or after the time started therein, shall
be deemed equivalent to notice.
Section 5. Interpretation. In these By-laws, unless a clear contrary
intention appears, the singular number includes the plural number and vice
versa, and reference to either gender includes the other gender.
ARTICLE VIII.
AMENDMENTS
Section 1. By the Board of Directors. Except as otherwise set forth in
these By-laws, these By-laws may be altered, amended or repealed or new By-laws
may be adopted by the
13
14
affirmative vote of a majority of the directors present at any regular or
special meeting of the Board of Directors at which a quorum is present.
Section 2. By the Stockholders. Except as otherwise set forth in these
By-laws, these By-laws may be altered, amended or repealed or new By-laws may be
adopted by the affirmative vote of the holders of at least sixty-six and
two-thirds percent (66-2/3%) of the shares of the capital stock of the
Corporation issued and outstanding and entitled to vote at any annual meeting of
stockholders, or at any special meeting of stockholders, provided notice of such
alteration, amendment, repeal or adoption of new By-laws shall have been stated
in the notice of such special meeting.
14