1
EXHIBIT 3.2
FORT POINT PARTNERS INC.
A DELAWARE CORPORATION
BYLAWS
ARTICLE I
OFFICES
SECTION 1.01 Registered Office. The registered office of Fort Point
Partners Inc. (hereinafter called the "Corporation") shall be in care of
National Registered Agents, Inc., 9 East Loockerman Street, Dover, County of
Kent, Delaware 19901, or at such other place as shall be determined by
resolution of the Board of Directors of the Corporation (hereinafter called the
"Board").
SECTION 1.02 Other Offices. The Corporation also may have an office or
offices at such other place or places, either within or without the State of
Delaware, as the Board may from time to time determine or as the business of the
Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 2.01 Annual Meetings. Annual meetings of the stockholders of the
Corporation for the purpose of electing directors and for the transaction of
such other proper business as may come before such meetings may be held at such
time, date and place as the Board shall determine by resolution.
SECTION 2.02 Special Meetings. A special stockholders meeting for the
transaction of any proper business may be called at any time by the Board, the
Chairman of the Board or by the President. No other person or persons are
permitted to call a special meeting.
SECTION 2.03 Place of Meetings. All meetings of the stockholders shall
be held at such places, within or without the State of Delaware, as may from
time to time be designated by the person or persons calling the respective
meeting and specified in the respective notice or waiver of notice thereof.
SECTION 2.04 Notice of Meetings. Except as otherwise required by law,
notice of each stockholders meeting, whether annual or special, shall be given
not less than ten (10) nor more than sixty (60) days before the date of the
meeting to each stockholder of record entitled to vote at such meeting by (a)
delivering a typewritten or printed notice of the meeting to the stockholder
personally, (b) depositing such notice in the United States mail, in a postage
prepaid envelope, directed to the stockholder at (i) the post office address
furnished by him or her to the Secretary for the purpose of such notice or, if
the stockholder has not furnished his or her address to the Secretary for such
purpose, (ii) the post office address last known to the Secretary, or (c)
transmitting a notice to the stockholder at one of addresses described herein by
telegraph, cable, or wireless. Except as otherwise expressly required by law, no
publication of any notice of a stockholders meeting shall be required. Every
notice of a stockholders meeting shall state the
2
place, date and hour of the meeting and, in the case of a special meeting, also
shall state the purpose or purposes for which the meeting is called. Notice of
any meeting of stockholders shall not be required to be given to any stockholder
who has waived such notice, and such notice shall be deemed waived by any
stockholder who attends such meeting, in person or by proxy, unless that
stockholder attends for the express purpose of objecting at the beginning of the
meeting that the meeting has not been lawfully called or convened and that no
further business should be transacted thereat. Except as otherwise expressly
required by law, notice of any adjourned stockholders meeting need not be given
if the time and place thereof are announced at the meeting at which the
adjournment is taken.
SECTION 2.05 Quorum. Except in the case of any meeting for the election
of directors summarily ordered as provided by law, the presence, in person or by
proxy, of persons holding the voting interest in a majority of the Corporation's
stock entitled to be voted at a stockholders meeting, shall constitute a quorum
for the transaction of business at any stockholders meeting or any adjournment
thereof. If a quorum is not present at a stockholders meeting or any adjournment
thereof, a majority in voting interest of the stockholders present in person or
by proxy and entitled to vote at such a meeting or, if no such stockholders are
present, any officer entitled to preside at or act as secretary of such meeting,
may adjourn such meeting from time to time. At any such adjourned meeting at
which a quorum is present, any business may be transacted that might have been
transacted at the meeting as originally called.
SECTION 2.06 Voting.
(a) At each stockholders meeting, each stockholder shall be entitled to
vote, in person or by proxy, each share or fractional share of the stock of the
Corporation having voting rights on the matter in question, so long as such
share was held by him or her and registered in his or her name on the books of
the Corporation:
(i) on the date fixed pursuant to Section 6.05 of these Bylaws
as the record date for the determination of stockholders entitled to
notice of and to vote at such meeting, or
(ii) if no such record date was fixed, (A) at the close of
business on the day immediately preceding the day on which notice of the
meeting was given or, if notice of the meeting was waived, (B) at the
close of business on the day immediately preceding the day on which the
meeting is held.
(b) Shares of stock belonging to the Corporation or to another
corporation, where a majority of the shares entitled to vote in the election of
directors for such other corporation is held, directly or indirectly, by the
Corporation, shall neither be entitled to vote nor be counted for quorum
purposes. Persons holding stock of the Corporation in a fiduciary capacity shall
be entitled to vote such stock. Persons whose stock is pledged shall be entitled
to vote, unless the pledgor has expressly empowered the pledgee to vote the
pledged shares in the transfer on the books of the Corporation, in which case
only the pledgee, or his or her proxy, may represent such stock and vote
thereon. Stock having voting power standing of record in the names of two or
more persons, whether fiduciaries, members of a partnership, joint tenants in
common, tenants by entirety or otherwise, or with respect to which two or more
persons have the same fiduciary relationship, shall be voted in accordance with
the provisions of the General Corporation Law of the State of Delaware.
2
3
(c) Any voting rights may be exercised by the stockholder so entitled in
person or by a proxy. Such proxy must be appointed by an instrument in writing,
subscribed by such stockholder or by his or her attorney thereunto authorized
and delivered to the secretary of the meeting. No proxy shall be voted or acted
upon, however, three years or more from its date, unless said proxy provides for
a longer period. The attendance at any meeting of a stockholder who may
theretofore have given a proxy shall not have the effect of revoking the proxy
unless the stockholder notifies the secretary of the meeting in writing prior to
the voting of the proxy that the proxy has been revoked. At any stockholders
meeting, all matters, except as otherwise provided in the Corporation's
Certificate of Incorporation, these Bylaws or by law, shall be decided by the
vote of a majority in voting interest of the stockholders present in person or
by proxy and entitled to vote at such meeting and on such a matter, provided
that a quorum is present. The vote at any stockholders meeting on any question
need not be by ballot, unless so directed by the chairman of the meeting. On a
vote by ballot, each ballot shall be signed by the stockholder voting, or by his
or her proxy if there be such proxy, and shall state the number of shares voted.
SECTION 2.07 List of Stockholders. At least ten (10) days before every
stockholders meeting, the Secretary of the Corporation shall prepare and make, 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 such stockholder. Such list shall be open to
the examination of any stockholder during ordinary business hours for any
purpose germane to the meeting and for a period of at least ten (10) days prior
to the meeting, either at a place within the city where the meeting 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 also shall be
produced and kept at the time and place of the meeting and may be inspected by
any stockholder who is present.
SECTION 2.08 Judges. If at any stockholders meeting a vote by written
ballot is taken on any question, the chairman of such meeting may appoint a
judge or judges to act with respect to such vote. Each judge so appointed shall
first subscribe an oath faithfully to execute the duties of a judge at such
meeting with strict impartiality and according to the best of his or her
ability. Such judges shall (a) decide upon the qualification of the voters and
report the number of shares represented at the meeting and entitled to vote on
such question, (b) conduct and accept the votes, and, when the voting is
completed, (c) ascertain and report the number of shares voted respectively for
and against the question. Reports of judges shall be in writing and subscribed
and delivered by them to the Secretary. The judges need not be stockholders, and
any officer of the Corporation may be a judge on any question other than a vote
for or against a proposal with respect to which he or she has a material
interest.
SECTION 2.09 Action Without Meeting. Any action required to be taken, or
which may be taken, at an annual or special stockholders meeting, also may be
taken without a meeting, without prior notice and without a vote, if a consent
in writing setting forth the action so taken is signed by stockholders having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted. Prompt notice of the taking of corporate action without
a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing. Notwithstanding the foregoing,
if at any time the Corporation shall have a class of stock registered pursuant
to the provisions of the Securities Exchange Act of 1934, as amended,
3
4
for so long as such class is so registered, any action by the stockholders of
such class must be taken at an annual or special meeting of stockholders and may
not be taken by written consent.
SECTION 2.10 Advance Notice of Stockholder Business. At any meeting of
the stockholders, only such business shall be conducted as shall have been
brought before the meeting (i) by or at the direction of the Board or (ii) by
any stockholder of the Corporation who complies with the notice procedures set
forth in this Section 2.10 and Section 2.11 of Article II. For business to be
properly brought before any meeting of the stockholders by a stockholder, the
stockholder must have given notice thereof in writing to the Secretary of the
Corporation not less than 90 days in advance of such meeting or, if later, the
tenth day following the first public announcement of the date of such meeting,
and such business must be a proper matter for stockholder action under the
General Corporation Law of the State of Delaware. A stockholder's notice to the
Secretary shall set forth as to each matter the stockholder proposes to bring
before the meeting (1) a brief description of the business desired to be brought
before the meeting and the reasons for conducting such business at the meeting,
(2) the name and address, as they appear on the Corporation's books, of the
stockholder proposing such business, (3) the class and number of shares of the
Corporation that are beneficially owned by the stockholder, and (4) any material
interest of the stockholder in such business. In addition, the stockholder
making such proposal shall promptly provide any other information reasonably
requested by the Corporation. The chairman of any such meeting shall have the
power and the duty to determine whether any business proposed to be brought
before the meeting has been made in accordance with the procedure set forth in
these Bylaws and shall direct that any business not properly brought before the
meeting shall not be considered. Notwithstanding anything in these Bylaws to the
contrary, no business shall be conducted at any meeting of the stockholders
except in accordance with the procedures set forth in this Section 2.10 and
Section 2.11 of Article II. For purposes of this Section 2.10 and Section 2.11
of Article II, "public announcement" shall mean disclosure in a press release
reported by the Dow Jones News Service, Associated Press or a comparable
national news service or in a document publicly filed by the Corporation with
the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of
the Securities Exchange Act of 1934, as amended, or any successor provision.
SECTION 2.11 Advance Notice of Stockholder Nominees. Nominations for the
election of directors may be made by the Board or by any stockholder entitled to
vote in the election of directors; provided, however, that a stockholder may
nominate a person for election as a director at a meeting only if written notice
of such stockholder's intent to make such nomination has been given to the
Secretary of the Corporation not later than 90 days in advance of such meeting
or, if later, the tenth day following the first public announcement of the date
of such meeting. Each such notice shall set forth: (i) the name and address of
the stockholder who intends to make the nomination and of the person or persons
to be nominated; (ii) a representation that the stockholder is a holder of
record of stock of the Corporation entitled to vote at such meeting and intends
to appear in person or by proxy at the meeting and nominate the person or
persons specified in the notice; (iii) a description of all arrangements or
understandings between the stockholder and each nominee and any other person or
persons (naming such person or persons) pursuant to which the nomination or
nominations are to be made by the stockholder, (iv) such other information
regarding each nominee proposed by such stockholder as would be required to be
included in a proxy statement filed pursuant to the proxy rules of the
Securities and Exchange Commission had the nominee been nominated, or intended
to be nominated, by the Board; and (v) the consent of each nominee to serve as a
director of the Corporation if so elected. In
4
5
addition, the stockholder making such nomination shall promptly provide any
other information reasonably requested by the Corporation. Notwithstanding the
foregoing provisions of this Section 2.11 of Article II, in the event that the
number of directors to be elected to the Board is increased and there is no
public announcement naming either all of the nominees for director or specifying
the size of the increased Board made by the Corporation at least 100 days in
advance of such meeting, a stockholder's notice required by this Section 2.11 of
Article II shall be considered timely, but only with respect to nominees for any
new positions created by such increase, if it shall be delivered to the
Secretary of the Corporation not later than the tenth day following the day on
which such public announcement is first made by the Corporation. No person shall
be eligible for election as a director of the Corporation unless nominated in
accordance with the procedures set forth in this Section 2.11 of Article II. The
chairman of any meeting of stockholders shall have the power and the duty to
determine whether a nomination has been made in accordance with the procedure
set forth in this Section 2.11 of Article II and shall direct that any
nomination not made in accordance with these procedures be disregarded.
ARTICLE III
BOARD OF DIRECTORS
SECTION 3.01 General Powers. The property, business and affairs of the
Corporation shall be managed by the Board.
SECTION 3.02 Number and Term of Office. The number of directors on the
Board shall be no less than two (2) and no more than eight(8), until changed by
resolution adopted by the stockholders. The exact number of directors shall be
determined by the Board. Directors need not be stockholders. Each director shall
hold office until his or her successor has been duly elected and qualified or
until he or she resigns or is removed in the manner hereinafter provided.
SECTION 3.03 Election of Directors. Subject to the provisions of the
Certificate of Incorporation, the Board shall be classified into three classes
and the members of each class shall serve for a term of three years. At the
first annual meeting of stockholders, one-third of the directors shall be
elected for a term of three years, one-third of the directors shall be elected
for a term of two years and one-third of the directors shall be elected for a
term of one year. If the number of directors is not divisible by three, the
first extra director shall be elected for a term of three years and the second
extra director, if any, shall be elected for a term of two years. At any
subsequent annual meeting of stockholders, a number of directors shall be
elected equal to the number of directors with terms expiring at that annual
meeting. Directors elected at each such annual meeting shall be elected for a
term expiring with the annual meeting of stockholders three years thereafter.
There shall be no right with respect to the shares of stock of the Corporation
to cumulate votes in the election of directors.
SECTION 3.04 Resignations. Any director may resign at any time by giving
written notice to the Board or to the Secretary. Any such resignation shall take
effect at the time specified in the resignation notice or, if such time is not
specified therein, immediately upon delivery of the notice. Unless otherwise
specified therein, the acceptance of such resignation shall not be necessary to
make it effective.
SECTION 3.05 Vacancies. Except as otherwise provided in the Certificate
of Incorporation or any agreement by and among the Corporation and its
stockholders, any vacancy
5
6
on the Board, whether because of death, resignation, disqualification, an
increase in the number of directors, or any other cause, may be filled by vote
of the majority of the remaining directors, even if the number of such directors
is less than a quorum. Each director so chosen to fill a vacancy shall hold
office until his or her successor has been elected and qualified or until he or
she resigns or is removed in the manner hereinafter provided. If at any time the
corporation should have no directors in office, then any officer or any
stockholder or an executor, administrator, trustee or guardian of a stockholder,
may call a special meeting of stockholders in accordance with the provisions of
the Certificate of Incorporation and these bylaws, or may apply to the Court of
Chancery for a decree summarily ordering an election as provided in Section 211
of the General Corporation Law of Delaware.
SECTION 3.06 Place of Meeting, Etc. The Board may hold any of its
meetings at such places within or without the State of Delaware as the Board may
designate from time to time by resolution or as shall be designated by the
person or persons calling the meeting or in the notice or waiver of notice of
such meeting. Directors may participate in any regular or special Board meeting
by means of conference telephone or similar communications equipment, pursuant
to which all persons participating in the meeting can hear one and other, and
such participation shall constitute presence in person at such meeting.
SECTION 3.07 First Meeting. The Board shall meet as soon as practicable
after each annual election of directors and notice of this first meeting shall
not be required.
SECTION 3.08 Regular Meetings. Regular meetings of the Board may be held
at such times as the Board determines from time to time by resolution. If any
day fixed for a regular meeting is a legal holiday in the place where the
meeting is to be held, then the meeting shall be held at the same hour and place
on the next succeeding business day that is not a legal holiday in that meeting
place. Except as provided by law, notice of regular Board meetings need not be
given.
SECTION 3.09 Special Meetings. Special meetings of the Board shall be
held whenever called by the President or a majority of the directors. Except as
otherwise provided by law or these Bylaws, notice of the time and place of each
such special meeting shall be (a) mailed to each director, addressed to him or
her at his or her residence or usual place of business, at least five (5) days
before the day on which the meeting is to be held, (b) sent to him or her at
such place by telegraph or cable or (c) delivered personally to him or her not
less than forty-eight (48) hours before the time at which the meeting is to be
held. Except where otherwise required by law or these Bylaws, notice of the
purpose of a special meeting need not be given. Notice of any meeting of the
Board shall not be required to be given to any director who is present at such
meeting, except a director who attends such meeting for the express purpose of
objecting to the transaction of any business at the beginning of the meeting
based on his or her contention that the meeting has not been lawfully called or
convened.
SECTION 3.10 Quorum and Manner of Acting. Except as otherwise provided
in these Bylaws or by law, the presence of a majority of the directors shall be
required to constitute a quorum for the transaction of business at any Board
meeting, and all matters shall be decided at any such meeting, a quorum being
present, by the affirmative votes of a majority of the directors present. In the
absence of a quorum, a majority of directors present at any meeting may adjourn
the same from time to time until a quorum is present. Notice of any adjourned
meeting need not
6
7
be given. The directors shall act only as a Board, and the individual directors
shall have no power as such.
SECTION 3.11 Action by Consent. Any action required or permitted to be
taken at any meeting of the Board or any committee thereof may be taken without
a meeting if a written consent to such action is signed by all the members of
the Board or such committee, as the case may be, and such written consent is
filed with the minutes of proceedings of the Board or committee.
SECTION 3.12 Removal of Directors. Subject to the provisions of the
Certificate of Incorporation or any agreement by and among the Corporation and
its stockholders, any director may be removed at any time, but only for cause
and only by the affirmative vote of the stockholders having 80% of the total
number of shares of the Corporation entitled to vote thereon. Such vote shall be
taken at a special stockholders meeting called for that purpose.
SECTION 3.13 Compensation. The directors shall receive only such
compensation for their services as directors as may be allowed by resolution of
the Board. The Board also may provide that the Corporation shall reimburse each
director for any expense incurred by him or her on account of his or her
attendance at any Board or committee meeting. Neither the payment of such
compensation nor the reimbursement of such expenses shall be construed to
preclude any director from serving the Corporation or its subsidiaries in any
other capacity and receiving compensation therefor.
SECTION 3.14 Committees. Pursuant to a resolution passed by a majority
of the entire Board, the Board may designate one or more committees, each
committee to consist of one or more directors. To the extent provided in the
Board resolution, and except as otherwise limited by law, any such committee
shall have and may exercise all the powers and authority of the Board in the
management of the business and affairs of the Corporation, and may authorize the
seal of the Corporation to be affixed to all papers that may require it. Any
such committee shall keep written minutes of its meetings and report the same to
the Board at the next regular Board meeting following each committee meeting. In
the absence or disqualification of a member of a committee, the member or
members thereof present at any meeting and not disqualified from voting, whether
or not such members constitute a quorum, may unanimously appoint another member
of the Board to act at the meeting in place of the absent or disqualified
member.
ARTICLE IV
OFFICERS
SECTION 4.01 Number. The officers of the Corporation shall be a
President, a Chief Financial Officer, a Secretary and such other officers,
including a Chairman of the Board, as may be designated by the Board. Any number
of offices may be held by the same person unless the Certificate of
Incorporation provides otherwise.
SECTION 4.02 Election Term of Office and Qualifications. The officers of
the Corporation, except such officers as may be appointed in accordance with
Section 4.03, shall be elected annually by the Board at its first meeting
following Board elections. Each officer shall hold office until his or her
successor has been duly chosen and qualified or until his or her resignation or
removal in the manner hereinafter provided.
7
8
SECTION 4.03 Assistants, Agents and Employees, Etc. In addition to the
officers specified in Section 4.01, the Board also may appoint such other
assistants, agents and employees as it deems necessary or advisable, including
one or more Assistant Secretaries, one or more Assistant Chief Financial
Officers and such other officers, including a Chairman of the Board, as may be
designated by the Board, each of whom shall hold office for such period, have
such authority and perform such duties as the Board may determine from time to
time. The Board may delegate the power to appoint, remove and prescribe the
duties of any such assistants, agents or employees to any officer of the
Corporation or any committee.
SECTION 4.04 Removal. Any officer, assistant, agent or employee of the
Corporation may be removed, with or without cause, at any time: (i) in the case
of any officer, assistant, agent or employee appointed by the Board, by
resolution of the Board; and, (ii) in the case of any other officer, assistant,
agent or employee, by the Board or any officer or committee upon whom or which
such power of removal has been conferred by the Board.
SECTION 4.05 Resignations. Any officer or assistant may resign at any
time by giving written notice of his or her resignation to the Board or the
Secretary. Any such resignation shall take effect at the time specified in the
resignation notice or, if the notice does not specify such a time, upon receipt
of the notice by the Board or the Secretary, as the case may be. Unless
otherwise specified in the resignation notice, the acceptance of such
resignation shall not be necessary to make it effective.
SECTION 4.06 Vacancies. A vacancy in any office because of death,
resignation, removal, disqualification or other cause, may be filled for the
unexpired portion of the term of that office in the manner prescribed by these
Bylaws for regular appointments or elections to such office.
SECTION 4.07 The President. The President of the Corporation shall be
the chief executive officer of the Corporation and shall have, subject to the
control of the Board, general and active supervision and management over the
business of the Corporation and over its several officers, assistants, agents
and employees.
SECTION 4.08 The Chairman of the Board. The Chairman of the Board, if
there shall be such an officer, shall, if present, preside at all meetings of
the Board and exercise and perform such other powers and duties as may from time
to time be assigned by the Board or prescribed by these Bylaws.
SECTION 4.09 The Secretary. If present, the Secretary shall record the
proceedings of all meetings of the Board and the stockholders, and the meetings
of all committees for which a secretary has not been appointed. Such records
shall be made in one or more books provided for that purpose. The Secretary also
shall see that all notices are duly given in accordance with these Bylaws and as
required by law. He or she shall be custodian of the seal of the Corporation and
shall affix and attest the seal to all documents to be executed on behalf of the
Corporation under its seal. He or she also shall perform all the duties incident
generally to the office of Secretary and such other duties as may be assigned to
him or her from time to time by the Board.
SECTION 4.10 The Chief Financial Officer. The Chief Financial Officer
shall have the general care and custody of the funds and securities of the
Corporation, and shall deposit all such funds in the name of the Corporation in
such banks, trust companies or other depositories as shall
8
9
be selected by the Board. He or she shall receive and give receipts for moneys
due and payable to the Corporation from any source whatsoever. He or she shall
exercise general supervision over expenditures and disbursements made by
officers, agents and employees, and the preparation of such records and reports
in connection therewith as may be necessary or desirable. In addition, he or she
shall perform all other duties incident generally to the office of Chief
Financial Officer and such other duties as may be assigned to him or her from
time to time by the Board.
SECTION 4.11 Representation of Shares of Other Corporations. The
Chairman of the Board, the President, any Vice President, the Chief Financial
Officer or any other person authorized by the Board or the President or Vice
President, is authorized to vote, represent and exercise on behalf of this
Corporation all rights incident to any and all shares of any other corporation
or corporations standing in the name of this Corporation. The authority granted
herein may be exercised either by such person directly or by any other person
authorized to do so by proxy or power of attorney duly executed by such person
having the authority.
SECTION 4.12 Compensation. The compensation of the officers of the
Corporation shall be fixed from time to time by the Board. No officer shall be
prevented from receiving such compensation by reason of the fact that he or she
also is a director. Nothing contained herein shall preclude any officer from
serving the Corporation, or any subsidiary thereof, in any other capacity and
accepting appropriate compensation for his or her services.
ARTICLE V
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
SECTION 5.01 Execution of Contracts. Except as otherwise provided in
these Bylaws, the Board may authorize any officer or agent to enter into any
contract or execute any instrument in the name of and on behalf of the
Corporation, and such authority may be general or confined to specific
instances. Unless so authorized by the Board or by these Bylaws, no officer,
agent or employee shall have any power or authority to bind the Corporation by
any contract or engagement, pledge the Corporation's credit or render it liable
for any purpose or in any amount.
SECTION 5.02 Checks, Drafts, Etc. All checks, drafts or other orders for
payment of money, notes or other evidence of indebtedness issued in the name of
or payable to the Corporation shall be signed or endorsed by such person or
persons and in such manner as shall be determined from time to time by
resolution of the Board. Each such officer, assistant, agent or attorney so
authorized shall post such bond, if any, as the Board may require.
SECTION 5.03 Deposits. All funds of the Corporation not otherwise
employed shall be deposited from time to time to the credit of the Corporation
in such banks, trust companies or other depositories as the Board may select, or
as may be selected by any officer, assistant, agent or attorney of the
Corporation to whom such power has been delegated by the Board. For the purpose
of deposit and collection for the account of the Corporation, the President (or
any other officer, assistant, agent or attorney of the Corporation who shall be
determined from time to time by the Board) may endorse, assign and deliver
checks, drafts and other orders for the payment of money payable to the order of
the Corporation.
9
10
SECTION 5.04 General and Special Bank Accounts. From time to time, the
Board may authorize the opening and keeping of general and special bank accounts
with such banks, trust companies or other depositories as the Board may select,
or as may be selected by any officer, assistant, agent or attorney of the
Corporation to whom such power has been delegated by the Board. The Board may
make such special rules and regulations with respect to such bank accounts as it
may deem expedient, but only to the extent that such rules and regulations are
not inconsistent with the provisions of these Bylaws.
ARTICLE VI
SHARES AND THEIR TRANSFER
SECTION 6.01 Certificates for Stock. Every owner of any shares of the
Corporation's stock shall be entitled to have a certificate or certificates in
such form as the Board shall prescribe, certifying the number and class of
shares owned by such stockholder. The certificates representing shares of such
stock shall be numbered in the order in which they are issued and shall be
signed in the name of the Corporation by the President and the Secretary. Any or
all of the signatures on the certificates may be by facsimile. If any officer,
transfer agent or registrar who has signed, or whose facsimile signature has
been placed upon, any stock certificate, ceases to hold that position before
such certificate is issued, such certificate may nevertheless be issued by the
Corporation with the same effect as though the person who signed such
certificate, or whose facsimile signature has been placed thereupon, was such
officer, transfer agent or registrar as of the date the certificate was issued.
A record shall be kept of the respective names of the persons, firms or
corporations owning the stock represented by the stock certificates, the number
and class of shares represented by each certificate, the respective dates of the
certificates and, in case a certificate is canceled, the date of cancellation.
Every certificate surrendered to the Corporation for exchange or transfer shall
be canceled, and no new certificate or certificates shall be issued in exchange
for any existing certificate until such existing certificate has been canceled,
except in cases provided for in Section 6.04 of this Article.
SECTION 6.02 Transfers of Stock. Transfers of shares of stock of the
Corporation only shall be made on the books of the Corporation by (a) the
registered holder of the shares, (b) his or her attorney thereunto authorized by
power of attorney duly executed and filed with the Secretary, or (c) a transfer
clerk or a transfer agent appointed as provided in Section 6.03 of this Article.
Such transfer shall be made only upon surrender of the certificate or
certificates, properly endorsed, of the shares to be transferred and payment of
all taxes due upon such transfer. The person in whose name shares of stock stand
on the books of the Corporation shall be deemed the owner thereof for all
purposes as regards the Corporation. Whenever any transfer of shares is for
collateral security only and is not absolute, such fact may be so expressed in
the entry of transfer on the books of the Corporation if both the transferor and
the transferee request such an entry when the certificate to be transferred is
presented to the Corporation.
SECTION 6.03 Regulations. The Board may make such rules and regulations
as it deems expedient concerning the issue, transfer and registration of the
Corporation's stock certificates, but only to the extent such rules and
regulations are not inconsistent with these Bylaws. The Board may appoint, or
authorize any officer to appoint, one or more transfer clerks or transfer agents
and one or more registrars, and may require all stock certificates to bear the
signature or signatures of any of them.
10
11
SECTION 6.04 Lost Stolen Destroyed and Mutilated Certificates. In case
of the loss, theft, destruction or mutilation of any stock certificate, another
certificate may be issued in its place upon proof of such loss, theft,
destruction or mutilation, and upon the giving of a bond of indemnity to the
Corporation in such form and in such sum as the Board may direct; provided,
however, that a new certificate may be issued without requiring any bond when,
in the judgment of the Board, it is proper to do so.
SECTION 6.05 Fixing Date for Determination of Stockholders of Record. In
order to determine which stockholders are entitled to (a) receive notice of or
vote at any stockholders meeting or any adjournment thereof, (b) express consent
to corporate action in writing without a meeting, (c) receive payment of any
dividend or other distribution or allotment of any rights or (d) exercise any
rights in respect of any other change, conversion or exchange of stock, or for
the purpose of any other lawful action, the Board may fix a record date in
advance of a stockholders meeting, which date shall not be more than 60 nor less
than 10 days before the date of such meeting, nor more than 60 days prior to any
other action. In any case involving the determination of stockholders for any
purpose other than notice of or voting at a stockholders meeting or expressing
consent to corporate action without a meeting, if the Board has not fixed a
record date, the record date for such purpose shall be the close of business on
the day the Board adopts a resolution relating thereto. A determination of which
stockholders are entitled to notice of or to vote at a stockholders meeting
shall apply to any adjournment of such meeting; provided, however, that the
Board may fix a new record date for the adjourned meeting.
11
12
ARTICLE VII
INDEMNIFICATION
SECTION 7.01 Action, Etc., Other than by or in the Right of the
Corporation. The Corporation shall indemnify, in the manner and to the fullest
extent permitted by the Delaware General Corporation Law, as the same exists or
may hereafter be amended (hereinafter referred to in this Article VII as the
"DGCL"), any person (or the estate of 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, investigative or
otherwise (other than an action by or in the right of the Corporation), if such
person is made or is threatened to be made a party by reason of the fact that he
or she 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. The Corporation shall indemnify any such person only against
expenses (including, without limitation, attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him or her in
connection with such action, suit or proceeding, and only if he or she has acted
in good faith and in a manner he or she reasonably believed to be in, or not
opposed to, the best interests of the Corporation and, with respect to any
criminal action or proceeding, only if he or she had no reasonable cause to
believe his or her conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction or plea of nolo contendere
or its equivalent shall not, in itself, create a presumption that the person did
not act in good faith or in a manner which he or she reasonably believed to be
in, or not opposed to, the best interests of the Corporation or, with respect to
any criminal action or proceeding, that he or she had reasonable cause to
believe that his or her conduct was unlawful.
SECTION 7.02 Actions, Etc., by or in the Right of the Corporation. The
Corporation shall indemnify, in the manner and to the fullest extent permitted
by the DGCL, any person (or the estate of any person) who was or is a party, or
is threatened to be made a party, to any threatened, pending or completed action
or suit by or in the right of the Corporation to procure a judgment in its
favor, if such person is made a party by reason of the fact that he or she 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. The Corporation shall indemnify any such person only against
expenses (including, without limitation, attorneys' fees) actually and
reasonably incurred by him or her in connection with the defense or settlement
of such action or suit, and only if he or she has acted in good faith and in a
manner he or she reasonably believed to be in, or not opposed to, the best
interests of the Corporation. Furthermore, no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged liable for negligence or misconduct in the performance of his or her
duty to the Corporation, unless and only to the extent that the Court of
Chancery, or the court in which such action or suit is brought, determines upon
application that, in view of all the circumstances of the case and despite the
adjudication of liability, such person is fairly and reasonably entitled to
indemnity for such expenses as the Court of Chancery or such other court deems
proper.
SECTION 7.03 Determination of Right of Indemnification. Any
indemnification under Section 7.01 or 7.02 of this Article (unless ordered by a
court) shall be made by the Corporation
12
13
only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper under the
circumstances because he or she has met the applicable standard of conduct set
forth in Section 7.01 or 7.02. Such determination shall be made (a) by the
majority vote of a quorum of directors who were not parties to such action, suit
or proceeding, or, if such a quorum is not obtainable or, even if such a quorum
is obtainable but a quorum of disinterested directors so directs, (b) by
independent legal counsel in a written opinion, or (c) by the stockholders.
SECTION 7.04 Indemnification Against Expenses of Successful Party.
Notwithstanding the other provisions of this Article, 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 7.01 or 7.02, or in defense of any claim, issue or matter therein,
he or she shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by him or her in connection therewith.
SECTION 7.05 Prepaid Expenses. Expenses incurred by an officer or
director in defending a civil or criminal action, suit or proceeding may be paid
by the Corporation in advance of the final disposition of such action, suit or
proceeding if such payment is authorized by the Board in the specific case, and
then only upon receipt by the Corporation of the written undertaking by or on
behalf of the director or officer to repay such amount unless it shall
ultimately be determined that he or she is entitled to be indemnified by the
Corporation as authorized in this Article. Such undertaking shall not be
required to be guaranteed by any other person or collateralized, and shall be
accepted by the Corporation without regard to the financial ability of the
person providing such undertaking to make such repayment. Such expenses incurred
by other employees and agents may be so paid upon such terms and conditions, if
any, as the Board deems appropriate.
SECTION 7.06 Other Rights and Remedies. The indemnification provided by
this Article shall not be deemed to limit the right of the Corporation to
indemnify any other person for any such expenses to the fullest extent permitted
by the DGCL, nor shall it be deemed exclusive of any other rights to which any
person seeking indemnification may be entitled under these Bylaws, any agreement
or vote of the stockholders or disinterested directors or otherwise, both as to
action in his or her official capacity and as to actions taken in another
capacity while holding such office. The indemnification provided by this Article
also shall continue as to a person who has ceased to be a director, officer,
employee or agent of the Corporation and shall inure to the benefit of the
heirs, executors and administrators of that person.
SECTION 7.07 Insurance. Upon resolution passed by the Board, 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, indemnifying such person against any liability asserted against him
or her and incurred by him or her in his or her capacity as director, officer
employee or agent, or arising out of his or her status as such, whether or not
the Corporation would have the power to indemnify him or her against such
liability under the provisions of this Article.
SECTION 7.08 Constituent Corporations. For the purposes of this Article,
references to "the Corporation" include all constituent corporations absorbed in
a consolidation or merger as
13
14
well as the resulting or surviving corporation, so that any person who is or was
a director, officer, employee or agent of such a constituent corporation, or is
or was serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, shall stand in the same position under the provisions
of this Article with respect to the resulting or surviving corporation as he or
she would have stood if he or she had served the resulting or surviving
corporation in the same capacity.
SECTION 7.09 Other Enterprises, Fines and Serving at Corporation's
Request. For purposes of this Article, references to "other enterprises" shall
include employee benefit plans; references to "fines" shall include any excise
taxes assessed on a person with respect to any employee benefit plan; and
references to "serving at the request of the Corporation" shall include any
position as a director, officer, employee or agent of the Corporation that
involves providing certain services or performing certain duties for an employee
benefit plan, its participants, or beneficiaries; and a person who acted in good
faith and in a manner he or she reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be deemed to
have acted in a manner "not opposed to the best interests of the Corporation" as
referred to in this Article.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01 Seal. The Board shall provide for a corporate seal, which
shall be in the form adopted by the Board.
SECTION 8.02 Waiver of Notices. Whenever notice is required to be given
by these Bylaws, the Certificate of Incorporation or by law, the person entitled
to said notice may waive such notice in writing, either before or after the time
stated therein, and such waiver shall be deemed equivalent to notice.
SECTION 8.03 Amendments. These Bylaws, or any of them, may be altered,
amended or repealed and new Bylaws may be made (a) by a majority of the entire
Board, or (b) by the stockholders, by a vote of a majority of the shares
entitled to vote thereon, provided that notice of such proposed amendment,
modification, repeal or adoption is given in the notice of the stockholders'
meeting. Any Bylaws made or altered by the stockholders may be altered or
repealed by either the Board or the stockholders. Notwithstanding the foregoing,
the affirmative vote of 80% of the total number of the then outstanding shares
of capital stock of this Corporation entitled to vote generally in the election
of directors, voting together as a single class, shall be required to amend or
repeal, or adopt any provision inconsistent with the purpose or intent of, the
following sections of these Bylaws: Sections 2.02 (Special Meeting), 2.09
(Action without Meeting), 2.10 (Advance Notice of Stockholder Business), 2.11
(Advance Notice of Stockholder Nominees), 3.12 (Removal of Directors) and 8.03
(Amendments).
14