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Exhibit 3.2
SECOND AMENDED AND RESTATED BYLAWS
OF
AIRONET WIRELESS COMMUNICATIONS, INC.
ARTICLE I
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Stockholders
1.01. ANNUAL MEETING. The annual meeting of the stockholders of this
Corporation, for the purpose of electing directors and transacting such other
business as may come before the meeting, shall be held on such date, at such
time and at such place as may be designated by the Board of Directors.
1.02. SPECIAL MEETINGS. Special Meetings of the stockholders may be
called at any time by the chairman of the board, or in case of the death,
absence or disability of the chairman of the board, the president, or in case of
the president's death, absence, or disability, a senior vice-president or a
majority of the Board of Directors acting with or without a meeting; provided
that if and to the extent that any Special Meeting of stockholders may be called
by any other person or persons specified in any provision of the certificate of
incorporation in effect from time to time (as amended, "Certificate of
Incorporation") or any amendment thereto or any certificate filed under Section
151(g) of the Delaware General Corporation Law (or its successor statute as in
effect from time to time) (the "Delaware Law"), then such Special Meeting may
also be called by the person or persons, in the manner, at the times and for the
purposes so specified; provided further, that the business transacted at any
Special Meeting of the stockholders shall be strictly limited to that identified
in the required notice calling such meeting and subject to the requirements of
Delaware Law, Certificate of Incorporation and these Bylaws.
1.03. PLACE OF SPECIAL MEETINGS. Special Meetings of stockholders shall
be held at such place as may be designated by the Board of Directors by notice
thereof.
1.04. NOTICE OF MEETINGS.
(a) Unless waived, a written, printed, or typewritten notice of each
annual or Special Meeting, stating the date, hour and place and the purpose or
purposes thereof shall be served upon or mailed to each stockholder of record
entitled to vote or entitled to notice, not more than sixty (60) days nor less
than ten (10) days before any such meeting. If mailed, such notice shall be
directed to a stockholder at his or her address as the same appears on the
records of the Corporation. If a meeting is adjourned to another time or place
and such adjournment is for thirty (30) days or less and no new record date is
fixed for the adjourned meeting, no further notice as to such adjourned meeting
need be given if the time and place to which it is adjourned are fixed and
announced at such meeting. In the event of a transfer of shares after notice has
been given and prior to the holding of the meeting, it shall not be necessary to
serve notice on the transferee. Such notice shall specify the place where the
stockholders list will be open for examination prior to the meeting if required
by Section 1.09 hereof. If the adjournment is for more than thirty (30) days, or
after the adjournment a new record
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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.
(b) A written waiver of any such notice signed by the person entitled
thereto, whether before or after the time stated therein, shall be deemed
equivalent to notice. Attendance of a person at a meeting shall constitute a
waiver of notice of such meeting, except when the person attends the meeting for
the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened.
1.05. FIXING DATE FOR DETERMINATION OF STOCKHOLDERS OF RECORD. In order
that the Corporation may determine the stockholders entitled to notice of or to
vote at any meeting or to receive payment of any dividend or other distribution
or allotment of any rights, or otherwise entitled to 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 of Directors may fix, in advance, a record
date, which shall not be more than sixty (60) nor less than ten (10) days before
the date of such meeting, nor more than sixty (60) days prior to any other
action.
If the Board of Directors shall not fix such a record date, (i) the
record date for determining stockholders entitled to notice of or to vote shall
be the close of business on the day next preceding the day on which notice is
given, or, if notice is waived, at the close of business on the day next
preceding the day on which the meeting is held, and (ii) in any case involving
the determination of stockholders for any purpose other than notice of or
voting, the record date for determining stockholders for such purpose shall be
the close of business on the day on which the Board of Directors shall adopt the
resolution relating thereto. Determination of stockholders entitled to notice of
or to vote shall apply to any adjournment of such meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned meeting.
1.06. ORGANIZATION. At each meeting of the stockholders, the president,
or, in his absence, the chairman of the Board of Directors, or in his absence,
any senior vice-president, shall act as chairman of the meeting, and the
secretary of the Corporation, or, if the secretary of the Corporation is not
present, the assistant secretary, or if the secretary and the assistant
secretary are not present, any person whom the chairman of the meeting shall
appoint, shall act as secretary of the meeting.
1.07. QUORUM. A stockholders' meeting duly called shall not be
organized for the transaction of business unless a quorum is present. Except as
otherwise expressly provided by law, the Certificate of Incorporation, these
Bylaws, or any certificate filed under Section 151(g) of the Delaware General
Corporation Law (or its successor statute as in effect from time to time), (i)
at any meeting called by the Board of Directors, the presence in person or by
proxy of holders of record entitling them to exercise at least one-third of the
voting power of the Corporation shall constitute a quorum for such meeting and
(ii) at any meeting called other than by the Board of Directors, the presence in
person or by proxy of holders of record entitling them to exercise at least a
majority of the voting power of the Corporation shall constitute a quorum for
such meeting. The stockholders present at a duly organized meeting can continue
to do business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum. If a meeting cannot be organized
because a quorum has not attended, a majority in voting interest of the
stockholders present may adjourn, or, in the absence of a decision by the
majority, any officer entitled to preside at such meeting may adjourn the
meeting to such time (not more than thirty (30) days after the previously
adjourned meeting) and place as they may determine, without notice other than by
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announcement at the meeting of the time and place of the adjourned meeting. At
any such adjourned meeting at which a quorum is present any business may be
transacted which might have been transacted at the meeting as originally called.
1.08. ORDER OF BUSINESS AND PROCEDURE. The order of business at all
meetings of the stockholders shall be determined by the chairman of the meeting.
Meetings shall be conducted in a manner designed to accomplish the business of
the meeting in a prompt and orderly fashion and to be fair and equitable to all
stockholders, but it shall not be necessary to follow any manual of
parliamentary procedure.
1.09. ADVANCE NOTICE OF STOCKHOLDER PROPOSALS. In order to properly
submit any business to an annual meeting of stockholders, a stockholder must
give timely notice in writing to the secretary of the Corporation. To be
considered timely, a stockholder's notice must be delivered either in person or
by first class United States, postage prepaid, and received at the principal
executive offices of the Corporation (a) not less than ninety (90) days nor more
than one hundred twenty (120) days (in the event that a different period of time
is required by any law, regulation or rule, then such different period of time
shall control) before the first anniversary date of the Corporation's proxy
statement (if no proxy is required then notice of meeting) in connection with
the last annual meeting of stockholders or (b) if no annual meeting was held in
the previous year or the date of the applicable annual meeting has been changed
by more than thirty (30) days from the date contemplated at the time of the
previous year's proxy statement (if no proxy statement is required then notice
of meeting), not less than a reasonable time, as determined by the Board of
Directors, prior to the date of the applicable annual meeting.
(b) The secretary of the Corporation shall deliver any stockholder
proposals received in a timely manner for review by the Board of Directors or a
committee designated by the Board of Directors.
(c) A stockholder's notice to submit business to an annual meeting of
stockholders shall set forth (i) the name and address of the stockholder; (ii)
the class and number of shares of stock beneficially owned by such stockholder;
(iii) the name in which such shares are registered on the stock transfer books
of the Corporation; (iv) a representation that the stockholder intends to appear
at the meeting in person or by proxy to submit the business specified in such
notice; (v) any material interest of the stockholder in the business to be
submitted; and (vi) a brief description of the business desired to be submitted
to the annual meeting, including the complete text of any resolutions to be
presented at the annual meeting, and the reasons for conducting such business at
the annual meeting. In addition, the stockholder making such proposal shall
promptly provide any other information reasonably requested by the Corporation.
This Subsection (c) shall not be interpreted to require the inclusion of
information about any such proposal in any proxy statement distributed by or on
behalf of the Board of Directors. Only business which the chairman of the
meeting determines was timely brought by advance notice in accordance with this
Section 1.09 shall be transacted at such meeting.
(d) Without limiting the foregoing provisions of this Section 1.09,
during any period in which the Corporation is a reporting company under the
Securities Exchange Act of 1934, as amended ("Exchange Act"), a stockholder who
seeks to have any proposal included in the corporation's proxy statement shall
comply with the requirements of Regulation 14A under the Exchange Act and all
other provisions of the Exchange Act and the rules and regulations promulgated
thereunder.
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1.10. VOTING.
(a) Each stockholder shall, at each meeting of the stockholders, be
entitled to vote in person or by proxy each share of the stock of the
Corporation having voting rights on the matter in question and which shall have
been held by him and registered in his name on the books of the Corporation on
the date fixed pursuant to Section 1.05 of these Bylaws as the record date for
the determination of stockholders entitled to notice of and to vote at such
meeting.
(b) Shares of its own stock belonging to the Corporation or to another
corporation, if a majority of the shares in such other corporation is held,
directly or indirectly, by the Corporation, shall neither be entitled to vote
nor be counted for quorum purposes.
(c) Any such voting rights may be exercised by the stockholder in
person or by his proxy appointed by an instrument in writing, subscribed by such
stockholder or by his attorney thereunto authorized and delivered to the
secretary of the meeting in sufficient time to permit the necessary examination
and tabulation thereof before the vote is taken; provided, however, that no
proxy shall be valid after the expiration of three (3) years after the date of
its execution, unless the stockholder executing it shall have specified therein
the length of time it is to continue in force. At any meeting of the
stockholders, all matters, except as otherwise provided in the Certificate of
Incorporation, in 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 voting thereon, a quorum being present. The vote at any meeting of the
stockholders on any question need not be by ballot, unless so directed by the
chairman of the meeting or required by the Certificate of Incorporation. On a
vote by ballot each ballot shall be signed by the stockholder voting, or by his
proxy, if there be such proxy, and it shall state the number of shares voted.
1.11. INSPECTORS. The Board of Directors, in advance of any meeting of
the stockholders, may appoint one or more inspectors to act at the meeting. If
inspectors are not so appointed, the person presiding at the meeting may appoint
one or more inspectors. If any person so appointed fails to appear or act, the
vacancy may be filled by appointment made by the Board of Directors in advance
of the meeting or at the meeting by the person presiding thereat. Each
inspector, before entering upon the discharge of his duties, shall take and sign
an oath faithfully to execute the duties of inspector at the meeting with strict
impartiality and according to the best of his ability. The inspectors so
appointed, if any, shall determine the number of shares outstanding, the shares
represented at the meeting, the existence of a quorum and the authenticity,
validity and effect of proxies and shall receive votes, ballots, waivers,
releases, or consents, hear and determine all challenges and questions arising
in connection with the right to vote, count and tabulate all votes, ballots,
waivers, releases, or consents, determine and announce the results and do such
acts as are proper to conduct the election or vote with fairness to all
stockholders. On request of the person presiding at the meeting, the inspectors
shall make a report in writing of any challenge, question or matter determined
by them and execute a certificate of any fact found by them. Any report or
certificate made by them shall be prima facie evidence of the facts stated and
of the vote as certified by them.
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ARTICLE II
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BOARD OF DIRECTORS
2.01. GENERAL POWERS OF BOARD. The powers of the Corporation shall be
exercised, its business and affairs conducted, and its property controlled by or
under the direction of the Board of Directors, except as otherwise provided by
Delaware Law or in the Certificate of Incorporation.
2.02. NUMBER OF DIRECTORS. The number of directors of the Corporation
(exclusive of directors to be elected by the holders of any one or more series
of Preferred Stock voting separately as a class or classes) shall be such number
as may be set from time to time within the limits set forth in the Certificate
of Incorporation by resolution adopted by affirmative vote of a majority of the
whole Board of Directors. As used in these Bylaws, the term "whole Board" means
the total number of directors which the Corporation would have if there were no
vacancies.
2.03. ELECTION OF DIRECTORS. At each meeting of the stockholders for
the election of directors, the persons receiving the greatest number of votes
shall be the directors. Directors need not be stockholders.
2.04. NOMINATIONS.
(a) Nomination of persons for election to the Board of Directors may be
made by the Board of Directors or any committee designated by the Board of
Directors or by any stockholder entitled to vote for the election of directors
at the applicable meeting of stockholders. However, nominations other than those
made by the Board of Directors or its designated committee must comply with the
procedures set forth in this Section 2.04, and no person shall be eligible for
election as a director unless nominated in accordance with the terms of this
Section 2.04.
(b) Notice of nominations which are proposed by the Board of Directors
shall be given on behalf of the Board of Directors by the chairman of the
meeting.
(c) In order to properly submit nominations of a person or persons for
election as director(s), a stockholder must give timely notice in writing to the
secretary of the Corporation. To be considered timely, a stockholder's notice
must be delivered either in person or by first class United States mail, postage
prepaid, and received at the principal executive offices of the Corporation not
less than (a) ninety (90) days nor more than one hundred twenty (120) days
(except that if a different period of time is required by any law, regulation or
rule applicable to the Corporation, then such different period of time shall
control) before the first anniversary date of the Corporation's proxy statement
(if no proxy is required then notice of meeting) in connection with the last
annual meeting of stockholders or (b) if no annual meeting was held in the
previous year or the date of the applicable annual meeting has been changed by
more than thirty (30) days from the date contemplated at the time of the
previous year's proxy statement (if no proxy statement is required then notice
of meeting), not less than a reasonable time, as determined by the Board of
Directors, prior to the date of the applicable annual meeting.
(d) A stockholder may nominate a person or persons for election to the
Board of Directors by giving written notice to the secretary of the Corporation
in accordance with the procedures set forth above. In addition to the timeliness
requirements set forth above for notice to the Corporation by a stockholder,
with respect to any Special Meeting of stockholders called for the
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election of directors, written notice must be delivered in the manner specified
above and not later than the close of business on the seventh day following the
date on which notice of such meeting is first given to stockholders.
(e) The secretary of the Corporation shall deliver any nominations
proposed by a shareholder and received in a timely manner for review by the
Board of Directors or a committee designated by the Board of Directors.
(f) A stockholder nomination of a person or persons for election to the
Board of Directors must also set forth, as to each person whom the stockholder
proposes to nominate for election as a director: (i) the name, age, business
address and, if known, residence address of such person; (ii) the principal
occupation or employment of such person; (iii) the class and number of shares of
stock of the Corporation which are beneficially owned by such person; (iv) any
other information relating to such person that is required to be disclosed in
solicitations of proxies for election of directors or is otherwise required by
the rules and regulations of the Securities and Exchange Commission promulgated
under the Exchange Act (regardless of whether the Corporation is a reporting
company under such Act); (v) the written consent of such person to be named in
the proxy statement (if applicable) as a nominee and to serve as a director if
elected; and (vi) a description of all arrangements or understandings between
such 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 such stockholder.
(g) Any person nominated for election as director by the Board of
Directors or any committee designated by the Board of Directors shall, upon the
request of the Board of Directors or such committee, furnish to the secretary of
the Corporation all such information pertaining to such person that is required
to be set forth in a stockholder's notice of nomination.
(h) The chairman of the meeting may, if the facts warrant, determine
and declare to the meeting that a nomination was not made in accordance with the
foregoing procedure, and if the chairman should so determine, the chairman shall
so declare to the meeting and the defective nomination shall be disregarded.
(i) Subject to the foregoing provisions of this Section 2.04, during
any period in which the Corporation is a reporting company under the Exchange
Act, a stockholder who seeks to have any proposal included in the corporation's
proxy statement shall comply with the requirements of Regulation 14A under the
Exchange Act and all other provisions of the Exchange Act and the rules and
regulations promulgated thereunder.
2.05. RESIGNATIONS. Any director of the Corporation may resign at any
time by giving written notice to the chairman of the Board of Directors or the
secretary of the Corporation. Such resignation shall take effect at the time
specified therein, and, unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
2.06. VACANCIES. In the event that any vacancy shall occur in the Board
of Directors, whether because of death, resignation, removal, newly created
directorships resulting from any increase in the authorized number of directors
(exclusive of increases resulting from the rights of holders of Preferred
Stock), the failure of the stockholders to elect the whole authorized number of
directors, or any other reason, such vacancy may be filled by the Board of
Directors by the
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affirmative vote of a majority of directors then in office, even though less
than a quorum. Any director elected by the Board of Directors to fill a vacancy
or newly created directorship shall hold office for the remainder of the full
term of the class of directors in which such directorship is part, and until
such director's successor is elected and qualified.
2.07. REMOVAL OF DIRECTORS. Directors may be removed only as provided
in the Certificate of Incorporation.
2.08. PLACE OF MEETING. The Board of Directors may hold any of its
meetings at the principal office of the Corporation or at such other place or
places as the Board of Directors (or the chairman in the absence of a
determination by the Board of Directors) may from time to time designate.
Directors may participate in any regular or Special Meeting of the Board of
Directors by means of conference telephone or similar communications equipment
pursuant to which all persons participating in the meeting of the Board of
Directors can hear each other and such participation shall constitute presence
in person at such meeting.
2.09. ANNUAL MEETING. A regular annual meeting of the Board of
Directors shall be held each year at the same place as and immediately after the
annual meeting of stockholders, or at such other place and time as determined by
the Board of Directors and notice thereof need not be given. At its regular
annual meeting the Board of Directors shall organize itself and elect the
officers of the Corporation for the ensuing year and may transact any other
business.
2.10. REGULAR MEETINGS. Regular Meetings of the Board of Directors may
be held at such intervals and such time as shall be determined by the Board of
Directors. After such determination and notice thereof has been once given to
each person then a member of the Board of Directors, Regular Meetings may be
held at such intervals, time and place without further notice being given.
2.11. SPECIAL MEETINGS. Special Meetings of the Board of Directors may
be called at any time by the Board of Directors or by the chairman or by a
majority of directors then in office, to be held on such day and at such time as
shall be specified by the person or persons calling the meeting.
2.12. NOTICE OF MEETINGS. Notice of each Special Meeting or, where
required, each Regular Meeting of the Board of Directors shall be given to each
director either by being mailed on at least the third day prior to the date of
the meeting or by being telegraphed, faxed or given personally or by telephone
on at least 24 hours notice prior to the date of the meeting. Such notice shall
specify the place, date and hour of the meeting and, if it is for a Special
Meeting, the purpose or purposes for which the meeting is called. At any meeting
of the Board of Directors at which every director shall be present, even though
without such notice, any business may be transacted. Any acts or proceedings
taken at a meeting of the Board of Directors not validly called or constituted
may be made valid and fully effective by ratification at a subsequent meeting
which shall be legally and validly called or constituted. Notice of any Regular
Meeting of the Board of Directors need not state the purpose of the meeting and,
at any Regular Meeting duly held, any business may be transacted. If the notice
of a Special Meeting shall state as a purpose of the meeting the transaction of
any business that may come before the meeting, then at the meeting any business
may be transacted, whether or not referred to in the notice thereof. A written
waiver of notice of a Special or Regular Meeting, signed by the person or
persons entitled to such notice whether before or after the time stated therein,
shall be deemed the equivalent of such notice, and attendance of a director at a
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meeting shall constitute a waiver of notice of such meeting except when the
director attends the meeting and prior to or at the commencement of such meeting
protests the lack of proper notice.
2.13. QUORUM AND VOTING. At all meetings of the Board of Directors, the
presence of a majority of the directors then in office shall constitute a quorum
for the transaction of business. Except as otherwise required by law, the
Certificate of Incorporation, or these Bylaws, the vote of a majority of the
directors present at any meeting at which a quorum is present shall be the act
of the Board of Directors. At all meetings of the Board of Directors, each
director shall have one vote.
2.14. COMMITTEES.
(a) The Board of Directors may appoint one or more committees of the
Board of Directors, to consist of one or more directors of the Corporation, and
may delegate to any such committee any of the authority of the Board of
Directors, however conferred, other than the power or authority in reference to
amending the Certificate of Incorporation, adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease or exchange of
all or substantially all of the corporation's property and assets, recommending
to the stockholders a dissolution of the Corporation or a revocation of a
dissolution, or amending the Bylaws of the Corporation. No committee shall have
the power or authority to declare a dividend or to authorize the issuance of
stock unless the resolution creating such committee expressly so provides. Each
committee shall serve at the pleasure of the Board of Directors, shall act only
in the intervals between meetings of the Board of Directors and shall be subject
to the control and direction of the Board of Directors. Each committee may act
by a majority of its members at a meeting or by a writing or writings signed by
all of its members. Each committee shall keep written minutes of its meetings
and report the same to the Board of Directors at the next Regular Meeting of the
Board of Directors.
(b) The Board of Directors may from time to time appoint from among its
members, and may fill vacancies on, an Executive Committee to serve during the
pleasure of the Board, provided that each of the Chairman of the Board and the
Chief Executive Officer shall be a member of any such Executive Committee.
During the intervals between the meetings of the Board, the Executive Committee
shall possess and may exercise all of the powers of the Board in the management
of the business and affairs of the Corporation conferred by these Bylaws or
otherwise. The Executive Committee shall keep a record of all its proceedings
and report the same to the Board. A majority of the members of the Executive
Committee shall constitute a quorum. The act of a majority of the members of the
Executive Committee present at any meeting at which a quorum is present shall be
the act of the Executive Committee.
2.15. COMPENSATION. The Board of Directors or a committee thereof may,
by resolution passed by a majority of directors, fix the compensation of
directors for service in any capacity and may fix fees for attendance at
meetings and may authorize the Corporation to pay the traveling and other
expenses of directors incident to their attendance at meetings or may delegate
such authority to a committee of the Board of Directors.
2.16. ACTION BY CONSENT. Any action required or permitted to be taken
at any meeting of the Board of Directors or of any committee thereof may be
taken without a meeting if a written consent thereto is signed by all members of
the Board of Directors or of such committee, as the case
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may be, and such written consent is filed with the minutes of proceedings of the
Board of Directors or such committee.
ARTICLE III
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OFFICERS
3.01. GENERAL PROVISIONS. The executive officers of the Corporation
shall be chosen by the Board of Directors, shall be the chairman of the Board
(who shall be a director), a vice-chairman of the Board (if such office is
created by the Board), a chief executive officer, a president, a chief operating
officer (if such office is created by the Board of Directors), such number of
senior vice-presidents and vice-presidents as the board may from time to time
determine, a chief financial officer, a secretary and a treasurer. Any person
may hold any two or more offices and perform the duties thereof, except the
offices of chairman of the Board of Directors and vice-chairman, or the offices
of president and senior vice-president or the offices of president and
secretary.
3.02. ELECTION, TERMS OF OFFICE, AND QUALIFICATION. The officers of the
Corporation named in Section 3.01 of this Article III shall be elected by the
Board of Directors and shall hold office until their respective successors are
chosen and qualify or, if appointed for a specific term, upon the expiration of
such term.
3.03. ADDITIONAL OFFICERS. In addition to the officers mentioned in
Section 3.01 of this Article III, the Corporation may have such other officers
or agents as the Board of Directors may deem necessary and may appoint, each of
whom shall hold office for such period, have such authority and perform such
duties as the Board of Directors may from time to time determine. The Board of
Directors may delegate to any officer the power to appoint any subordinate
officers or agents. In the absence of any officer of the Corporation, or for any
other reason the Board of Directors may deem sufficient, the Board of Directors
may delegate the powers and duties, or any of them, of such officer to any other
officer, or to any director.
3.04. REMOVAL. Except as set forth below, any officer of the
Corporation may be removed, either with or without cause, at any time, by
resolution adopted by the Board of Directors at any meeting, the notice (or
waivers of notice) of which shall have specified that such removal action was to
be considered. Any officer appointed not by the Board of Directors but by an
officer or committee to which the Board of Directors shall have delegated the
power of appointment may be removed, with or without cause, by the committee or
superior officer (including successors) who made the appointment, or by any
committee or officer upon whom such power of removal may be conferred by the
Board of Directors.
3.05. RESIGNATIONS. Any officer may resign at any time by giving
written notice to the Board of Directors, or to the chairman of the Board of
Directors, the president, or the secretary of the Corporation. Any such
resignation shall take effect at the time specified therein, and unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
3.06. VACANCIES. A vacancy in any office because of death, resignation,
removal, disqualification, or otherwise, shall be filled in the manner
prescribed in these Bylaws for regular appointments or elections to such office.
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ARTICLE IV
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DUTIES OF THE OFFICERS
4.01. CHAIRMAN OF THE BOARD. The Chairman of the Board shall preside at
all meetings of the Board of Directors of the Corporation and shall serve as
chairman of any Executive Committee appointed by the Board of Directors pursuant
to Section 2.14 of Article II. He shall have such other powers and perform such
other duties as are provided in these Bylaws and as may from time to time be
assigned to him by the Board of Directors.
4.02. VICE CHAIRMAN OF THE BOARD. The Vice Chairman of the Board shall
have such powers and perform such duties as may from time to time be delegated
to him by the Chairman of the Board and shall have such other powers and perform
such other duties as are provided in these Bylaws and as may from time to time
be assigned to him by the Board of Directors.
4.03. CHIEF EXECUTIVE OFFICER. The Chief Executive officer shall
preside at all meetings of stockholders and shall have general charge and
supervision of the business of the Corporation. In the absence of the Chairman
of the Board and the Vice Chairman of the Board, the Chief Executive Officer
shall preside at all meetings of the Board of Directors and shall serve as
chairman of any Executive Committee appointed by the Board of Directors pursuant
to Section 2.14 of Article II. He shall have such other powers and perform such
other duties as are provided in these Bylaws and as may from time to time be
assigned to him by the Board of Directors.
4.04. PRESIDENT. The President shall, in the absence, disability, or
inability to act of the Chief Executive Officer, exercise all powers and perform
all duties of the Chief Executive Officer (except such powers and duties as are
incident to the Chief Executive Officer's position or a member of the Board of
Directors or of any Executive Committee appointed by the Board of Directors
pursuant to Section 2.14 of Article II), and shall have such other powers and
perform such other duties as are provided by these Bylaws and as may from time
to time be assigned to him by the Board of Directors.
4.05. CHIEF OPERATING OFFICER. The Chief Operating Officer shall have
such powers and perform such duties as are provided in these Bylaws and as may
from time to time be assigned to him by the Board of Directors.
4.06. POWERS AND DUTIES OF VICE PRESIDENTS. Any Senior Vice President
or Vice President from time to time designated by the Board of Directors shall,
in the absence, disability, or inability to act of the President, exercise all
powers and perform all duties of the President. Each Senior Vice President shall
have such other powers and perform such other duties as may from time to time be
assigned to him by the Board of Directors, and each Vice President or Assistant
Vice President shall have such other powers and perform such other duties as may
from time to time be assigned to him by the Chief Executive Officer.
4.07. POWERS AND DUTIES OF TREASURER AND ASSISTANT TREASURERS.
(a) The Treasurer shall have the care and custody of all the funds and
securities of the Corporation except as may be otherwise ordered by the Board of
Directors, shall cause such funds to be deposited to the credit of the
Corporation in such banks or depositories as may be designated
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by the Board of Directors, the Chairman of the Board, the Chief Executive
Officer, or the Treasurer, and shall cause such securities, to be placed in
safekeeping in such manner as may be designated by the Board of Directors, the
Chairman of the Board, the Chief Executive Officer, or the Treasurer.
(b) The Treasurer or an Assistant Treasurer, or such other person or
persons as may be designated for such purpose by the Board of Directors, the
Chairman of the Board, the Chief Executive Officer, or the Treasurer, may
endorse in the name and on behalf of the Corporation all instruments for the
payment of money, bills of lading, warehouse receipts, insurance policies, and
other commercial documents requiring such endorsement and may sign all receipts
and vouchers for payments made to the Corporation.
(c) The Treasurer shall render a statement of the cash account of the
Corporation to the Board of Directors as often as it shall require the same and
shall enter or cause to be entered regularly in books to be kept by him for that
purpose full and accurate accounts of all moneys received and paid by him on
account of the Corporation and of all securities received and delivered by the
Corporation.
(d) The Treasurer shall have such other powers and perform such other
duties as are provided in these Bylaws and as may from time to time be assigned
to him by the Board of Directors. Each Assistant Treasurer shall have such
powers and perform such duties as may from time to time be assigned to him by
the Treasurer or by the Board of Directors. In the absence, disability or
inability to act of the Treasurer, any Assistant Treasurer may exercise any of
the powers and may perform any of the duties of the Treasurer.
4.08. POWERS AND DUTIES OF SECRETARY AND ASSISTANT SECRETARIES.
(a) The Secretary shall attend all meetings of the Board of Directors
and of the stockholders and shall keep the minutes of all proceedings of the
stockholders and the Board of Directors in proper books provided for that
purpose. The Secretary shall attend to the giving and serving of all notices of
the Corporation in accordance with the provisions of the Certificate of
Incorporation, these Bylaws, and the laws of the State of Delaware. The
Secretary may, with the Chief Executive Officer, the President, the Chief
Operating Officer, a Senior Vice President or other authorized officer of the
Corporation, sign contracts and other documents in the name of the Corporation.
(b) The Secretary shall have such other powers and perform such other
duties as are provided in these Bylaws and as may from time to time be assigned
to him by the Board of Directors and shall perform all other acts incident to
the office of Secretary. Each Assistant Secretary shall have such powers and
perform such duties as may from time to time be assigned to him by the Secretary
or by the Board of Directors. In the absence, disability, or inability to act of
the Secretary, any Assistant Secretary may exercise any of the powers and may
perform any of the duties of the Secretary.
(c) In no case shall the Secretary or any Assistant Secretary, without
the express written authorization and direction of the Board of Directors, have
any responsibility for, or any duty or authority with respect to, the
withholding or payment of any federal, state or local taxes of the Corporation
or the preparation or filing of any tax return.
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ARTICLE V
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INDEMNIFICATION OF DIRECTORS AND OFFICERS
5.01. INDEMNIFICATION. The provisions of the Corporation's Certificate
of Incorporation limiting liability of directors, officers and employees, and
providing for payment of legal fees, other costs and expenses, and
indemnification generally of directors, officers and employees, are incorporated
herein by this reference. Nothing in this Article V or in Article VIII herein
shall be construed to limit any provisions in the Corporation's Certificate of
Incorporation.
5.02. INSURANCE. The proper officers of the Corporation, without
further authorization by the Board of Directors, may in their discretion
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 for
another corporation, partnership, joint venture, trust or other enterprise,
against any liability.
5.03. ERISA. To assure indemnification under this Article V of all such
persons who are or were "fiduciaries" of an employee benefit plan governed by
the Act of Congress entitled "Employee Retirement Income Security Act of 1974",
as amended from time to time, the provisions of this Article V shall, for the
purposes hereof, be interpreted as follows: an "other enterprise" shall be
deemed to include an employee benefit plan; the Corporation shall be deemed to
have requested a person to serve as an employee of an employee benefit plan
where the performance by such person of his duties to the Corporation also
imposes duties on, or otherwise involves services by, such person to the plan or
participants or beneficiaries of the plan; excise taxes assessed on a person
with respect to an employee benefit plan pursuant to said Act of Congress shall
be deemed "fines"; and action taken or omitted by a person with respect to an
employee benefit plan in the performance of such person's duties for a purpose
reasonably believed by such person to be in the interest of the participants and
beneficiaries of the plan shall be deemed to be for a purpose which is not
opposed to the best interests of the Corporation.
5.04. CONTRACTUAL NATURE. The foregoing provisions of this Article V
shall be deemed to be a contract between the Corporation and each director and
officer who serves in such capacity at any time while this Article is in effect.
Neither any repeal or modification of this Article or, to the fullest extent
permitted by the laws of Delaware, any repeal or modification of laws, shall
affect any rights or obligations then existing with respect to any state of
facts then or theretofore existing or any action, suit or proceeding theretofore
or thereafter brought based in whole or in part upon any such state of facts.
5.05 CONSTRUCTION. For the purposes of this Article V, references to
"the Corporation" include, in addition to the resulting Corporation, any
constituent Corporation (including any constituent of a constituent) absorbed in
a consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers and employees
or agents, so that any person who is or was a director or officer of such
constituent Corporation or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise or as a member of any
committee or similar body 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 with respect to such constituent corporation if its separate
existence had continued.
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ARTICLE VI
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DEPOSITORIES, CONTRACTS AND OTHER INSTRUMENTS
6.01. DEPOSITORIES. The chairman of the Board of Directors, the chief
executive officer, the president, the treasurer and any vice-president of the
Corporation whom the Board of Directors authorizes to designate depositories for
the funds of the Corporation are each authorized to designate depositories for
the funds of the Corporation deposited in its name and the signatories and
conditions with respect thereto in each case, and from time to time, to change
such depositories, signatories and conditions, with the same force and effect as
if each such depository, the signatories and conditions with respect thereto and
changes therein had been specifically designated or authorized by the Board of
Directors; and each depository designated by the Board of Directors or by the
chairman of the Board of Directors, the chief executive officer, the president,
the treasurer, or any such senior vice president or vice-president of the
Corporation, shall be entitled to rely upon the certificate of the secretary or
any assistant secretary of the Corporation setting forth the fact of such
designation and of the appointment of the officers of the Corporation or of
other persons who are to be signatories with respect to the withdrawal of funds
deposited with such depository, or from time to time the fact of any change in
any depository or in the signatories with respect thereto.
6.02. EXECUTION OF INSTRUMENTS GENERALLY. In addition to the powers
conferred upon the chairman of the Board of Directors in Section 4.01 and except
as otherwise provided in Section 6.01 of this Article VI, all contracts and
other instruments entered into in the ordinary course of business requiring
execution by the Corporation may be executed and delivered by the chief
executive officer, the president, the treasurer or any senior vice president or
vice-president, and authority to sign any such contracts or instruments, which
may be general or confined to specific instances, may be conferred by the Board
of Directors upon any other person or persons. Any person having authority to
sign on behalf of the Corporation may delegate, from time to time, by instrument
in writing, all or any part of such authority to any person or persons if
authorized to do so by the Board of Directors.
6.03. STOCK OWNED BY THE CORPORATION. Unless otherwise ordered by the
Board of Directors, each of the Chief Executive Officer, President and any
Senior Vice President in person or by proxy or proxies appointed by him shall
have full power and authority on behalf of the Corporation to vote, act and
consent with respect to any shares issued by other corporations which the
Corporation may own, which may be held in the corporation's name or as to which
the Corporation may otherwise have the right to vote, act or consent.
ARTICLE VII
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SHARES AND THEIR TRANSFER
7.01. CERTIFICATE FOR SHARES. Every owner of one or more shares in the
Corporation shall be entitled to a certificate, which shall be in such form as
the Board of Directors shall prescribe, certifying the number and class of
shares in the Corporation owned by him. When such certificate is counter-signed
by an incorporated transfer agent or registrar, the signature of any of said
officers may be facsimile, engraved, stamped or printed. The certificates for
the respective classes of such shares shall be numbered in the order in which
they shall be issued and shall be signed in the name of the Corporation by the
chairman of the Board of Directors, the chief executive officer or the president
or a senior vice president or vice-president, and by the secretary or an
assistant secretary
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or the treasurer or an assistant treasurer. A record shall be kept of the name
of the person, firm or Corporation owning the shares represented by each such
certificate and the number of shares represented thereby, the date thereof, and
in case of cancellation, 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
certificates until such existing certificates shall have been so canceled.
7.02 LOST, DESTROYED AND MUTILATED CERTIFICATES. If any certificates
for shares in this Corporation become worn, defaced or mutilated but are still
substantially intact and recognizable, the directors or authorized officers,
upon production and surrender thereof, shall order the same canceled and shall
issue a new certificate in lieu of same. The holder of any shares in the
Corporation shall immediately notify the Corporation if a certificate therefor
shall be lost, destroyed, or mutilated beyond recognition, and the Corporation
may issue a new certificate in the place of any certificate theretofore issued
by it which is alleged to have been lost or destroyed, or mutilated beyond
recognition, and the Board of Directors may, in its discretion, require the
owner of the certificate which has been lost, destroyed or mutilated beyond
recognition, or his legal representative, to give the Corporation a bond in such
sum and with such surety or sureties as it may direct, not exceeding double the
value of the stock, to indemnify the Corporation against any claim that may be
made against it on account of the alleged loss, destruction, or mutilation of
any such certificate. The Board of Directors may, however, in its discretion,
refuse to issue any such new certificate except pursuant to legal proceedings,
under the laws of the State of Delaware in such case made and provided.
7.03. TRANSFERS OF SHARES. Transfers of shares in the Corporation shall
be made (in accordance with the Certificate of Incorporation) only on the books
of the Corporation by the registered holder thereof, his legal guardian,
executor or administrator, or by his attorney thereunto authorized by power of
attorney duly executed and filed with the secretary of the Corporation or with a
transfer agent appointed by the Board of Directors, and on surrender of the
certificate or certificates for such shares properly endorsed or accompanied by
properly executed stock powers and evidence of the payment of all taxes imposed
upon such transfer. Unless otherwise stated in the Certificate of Incorporation,
the person in whose name shares stand on the books of the Corporation shall, to
the full extent permitted by law, be deemed the owner thereof for all purposes
as regards the Corporation.
7.04. REGULATIONS. The Board of Directors may make such rules and
regulations as it may deem expedient, not inconsistent with these Bylaws
concerning the issue, transfer, and registration of certificates for shares in
the Corporation. It may appoint one or more transfer agents or one or more
registrars, or both, and may require all certificates for shares to bear the
signature of either or both.
ARTICLE VIII
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LIMITED LIABILITY; INDEMNIFICATION
8.01. LIMITED LIABILITY OF DIRECTORS. A director of the Corporation
shall not be personally liable to the Corporation or its stockholders for
monetary damages for breach of his fiduciary duty as a director, except, if
required by Delaware law, as amended from time to time, for liability (i) for
any breach of the director's duty of loyalty to the Corporation or its
stockholders; (ii) for acts or
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omissions not in good faith or which involve intentional misconduct or a knowing
violation of law; (iii) under Section 174 of Delaware law; or (iv) for any
transaction from which the director derived an improper personal benefit.
Neither the amendment nor repeal of this Section shall eliminate or reduce the
effect of this Section in respect of any matter occurring, or any cause of
action, suit or claim that, but for this Section would accrue or arise, prior to
such amendment or repeal.
8.02. INDEMNIFICATION AND INSURANCE.
(a) RIGHT TO INDEMNIFICATION. Each person who was or is made a party or
is threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "Proceeding"), by reason of the fact that such person, or a
person of whom such person is the legal representative, is or was a director of
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 employee benefit plans, 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 authorized by Delaware 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
said law permitted the Corporation to provide prior to such amendment), against
all expense, liability and loss (including attorneys' fees, judgments, fines,
amounts paid or to be paid in settlement, and excise taxes or penalties arising
under the Employee Retirement Income Security Act of 1974, as in effect from
time to time) reasonably incurred or suffered by such person in connection
therewith and such indemnification shall continue as to a person who has ceased
to be a director, officer, employee or agent and shall inure to the benefit of
such person's heirs, executors and administrators; provided, however, that,
except as provided in paragraph (b) hereof, the Corporation shall indemnify any
such person seeking indemnification in connection with a Proceeding (or part
thereof) initiated by such person only if such Proceeding (or part thereof) was
authorized by the Board of Directors. The right to indemnification conferred in
this Section shall be a contract right and shall include the right to have the
Corporation pay the expenses incurred in defending any such Proceeding in
advance of its final disposition; any advance payments to be paid by the
Corporation within twenty (20) calendar days after the receipt by the
Corporation of a statement or statements from the claimant requesting such
advance or advances from time to time; provided, however, that, if and to the
extent Delaware law requires, the payment of such expenses incurred by a
director or officer in such person's capacity as a director or officer (and not
in any other capacity in which service was or is rendered by such person while a
director or officer, including, without limitation, service to an employee
benefit plan) in advance of the final disposition of a proceeding, shall be made
only upon delivery to the Corporation of an undertaking, by or on behalf of such
director or officer, to repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be indemnified under
this Section or otherwise. The Corporation may, to the extent authorized from
time to time by the Board of Directors, grant rights to indemnification, and
rights to have the Corporation pay the expenses incurred in defending any
proceeding in advance of its final disposition, 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.
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(b) RIGHT OF CLAIMANT TO BRING SUIT. If a claim under paragraph (a) of
this Section is not paid in full by the Corporation within thirty (30) calendar
days after a written claim has been received by the Corporation, the claimant
may at any time thereafter bring suit against the Corporation to recover the
unpaid amount of the claim and, if successful in whole or in part, the claimant
shall be entitled to be paid also the expense of prosecuting such claim. It
shall be a defense to any such action (other than an action brought to enforce a
claim for expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has not met the standard of
conduct which makes it permissible under Delaware law for the Corporation to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors, independent legal counsel or its
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because the claimant has met the applicable standard of conduct set forth in
Delaware law, nor an actual determination by the Corporation (including its
Board of Directors, independent legal counsel or its stockholders) that the
claimant has not met such applicable standard of conduct, shall be a defense to
the action or create a presumption that the claimant has not met the applicable
standard of conduct.
(c) NON-EXCLUSIVITY OF RIGHTS. The right to indemnification and the
payment of expenses incurred in defending a proceeding in advance of its final
disposition conferred in this Section shall not be exclusive of any other right
which any person may have or hereafter acquire under any statute, provision of
the Certificate of Incorporation, Bylaw, agreement, vote of stockholders or
disinterested directors or otherwise. No repeal or modification of this Article
shall in any way diminish or adversely affect the rights of any director,
officer, employee or agent of the Corporation hereunder in respect of any
occurrence or matter arising prior to any such repeal or modification.
(d) 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 such expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under Delaware law.
(e) SEVERABILITY. If any provision or provisions of this Article VIII
shall be held to be invalid, illegal or unenforceable for any reason whatsoever:
(1) the validity, legality and enforceability of the remaining provisions of
this Article VIII (including, without limitation, each portion of any paragraph
of this Article VIII containing any such provision held to be invalid, illegal
or unenforceable, that is not itself held to be invalid, illegal or
unenforceable) shall not in any way be affected or impaired thereby; and (2) to
the fullest extent possible, the provisions of this Article VIII (including,
without limitation, each such portion of any paragraph of this Article VIII
containing any such provision held to be invalid, illegal or unenforceable)
shall be construed so as to give effect to the intent manifested by the
provision held invalid, illegal or unenforceable.
ARTICLE IX
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SEAL
The Board of Directors may provide a corporate seal, which shall be
circular and contain the name of the Corporation engraved around the margin and
the words "corporate seal," the year of its organization, and the word
"Delaware."
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