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EXHIBIT 3.2
ELLER MEDIA CORPORATION
a Delaware corporation
BY-LAWS
ARTICLE I
OFFICES
Section 1. The principal office of the Corporation in the
State of Delaware shall be in the City of Wilmington, County of New Castle,
State of Delaware.
Section 1.2. The Corporation may also have offices at such
other places both within and without the State of Delaware as the board of
directors (the "Board of Directors") may from time to time determine or the
business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 2.1. Annual Meetings. An annual meeting of
stockholders shall be held for the election of directors at such date, time and
place, either within or without the State of Delaware, as may be designated by
resolution of the Board of Directors from time to time. Any other proper
business may be transacted at the annual meeting.
Section 2.2. Special Meetings. Special meetings of
stockholders for any purpose or purposes may be called at any time pursuant to
and in accordance with the provisions of the Restated Certificate of
Incorporation, but such special meetings may not be called by any other person
or persons. Business transacted at any special meeting of stockholders shall be
limited to the purposes stated in the notice.
Section 2.3. Notice of Meetings. Whenever stockholders are
required or permitted to take any action at a meeting, a written notice of the
meeting shall be given that shall state the place, date and hour of the meeting
and, in the case of a special meeting, the purpose or purposes for which the
meeting is called. Unless otherwise provided by law, the Restated Certificate of
Incorporation or these By-laws, the written notice of any meeting shall be given
not less than ten (10) nor more than sixty (60) days before the date of the
meeting to each stockholder entitled to vote at such meeting. If mailed, such
notice shall be deemed to be given when deposited in the United States mail,
postage prepaid, directed to the stockholder at his address as it appears on the
records of the corporation.
Section 2.4. Adjournments. Any meeting of stockholders, annual
or special, may adjourn from time to time to reconvene at the same or some other
place, and notice need not be given of any such adjourned meeting if the time
and place thereof are
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announced at the meeting at which the adjournment is taken. At the adjourned
meeting the Corporation may transact any business which might have been
transacted at the original meeting. If the adjournment is for more than thirty
(30) days, or if after the adjournment a new record date is fixed for the
adjourned meeting, notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
Section 2.5. Quorum. Except as otherwise provided by law, the
Restated Certificate of Incorporation or these By-laws, at each meeting of
stockholders the presence in person or by proxy of the holders of a majority in
voting power of the outstanding shares of stock entitled to vote at the meeting
shall be necessary and sufficient to constitute a quorum. In the absence of a
quorum, the stockholders so present may, by a majority in voting power thereof,
adjourn the meeting from time to time in the manner provided in Section 2.4 of
these By-laws until a quorum shall attend. Shares of its own stock belonging to
the Corporation or to another corporation, if a majority of the shares entitled
to vote in the election of directors of such other corporation is held, directly
or indirectly, by the Corporation, shall neither be entitled to vote nor be
counted for quorum purposes; provided, however, that the foregoing shall not
limit the right of the Corporation or any subsidiary of the Corporation to vote
stock, including but not limited to its own stock, held by it in a fiduciary
capacity.
Section 2.6. Organization. Meetings of stockholders shall be
presided over by the Chairman of the Board, if any, or in his absence by the
Vice Chairman of the Board, if any, or in his absence by the President, or in
his absence by a Vice President, or in the absence of the foregoing persons by a
chairman designated by the Board of Directors, or in the absence of such
designation by a chairman chosen at the meeting. The Secretary shall act as
secretary of the meeting, but in his absence the chairman of the meeting may
appoint any person to act as secretary of the meeting.
Section 2.7. Voting; Proxies. Except as otherwise provided by
or pursuant to the provisions of the Restated Certificate of Incorporation, each
stockholder entitled to vote at any meeting of stockholders shall be entitled to
one vote for each share of stock held by such stockholder which has voting power
upon the matter in question. Each stockholder entitled to vote at a meeting of
stockholders or to express consent or dissent to corporate action in writing
without a meeting may authorize another person or persons to act for such
stockholder by proxy, but no such proxy shall be voted or acted upon after three
years from its date, unless the proxy provides for a longer period. A proxy
shall be irrevocable if it states that it is irrevocable and if, and only as
long as, it is coupled with an interest sufficient in law to support an
irrevocable power. A stockholder may revoke any proxy which is not irrevocable
by attending the meeting and voting in person or by filing an instrument in
writing revoking the proxy or by delivering a proxy in accordance with
applicable law bearing a later date to the Secretary of the Corporation. Voting
at meetings of stockholders need not be by written ballot. At all meetings of
stockholders for the election of directors a plurality of the votes cast shall
be sufficient to elect. All other elections and questions shall, unless
otherwise provided by the Restated Certificate of Incorporation, these By-laws,
the rules or regulations of any stock exchange applicable to
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the Corporation, or as otherwise provided by law or pursuant to any regulation
applicable to the Corporation, be decided by the affirmative vote of the holders
of a majority in voting power of the shares of stock of the Corporation which
are entitled to vote thereon.
Section 2.8. 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 of stockholders or any adjournment thereof,
or to express consent to corporate action in writing without a meeting, or
entitled to receive payment of any dividend or other distribution or allotment
of any rights, or entitled to exercise any rights in respect of any change,
conversion or exchange of stock or for the purpose of any other lawful action,
the Board of Directors may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted by
the Board of Directors, and which record date: (1) in the case of determination
of stockholders entitled to vote at any meeting of stockholders or adjournment
thereof, shall, unless otherwise required by law, not be more than sixty nor
less than ten days before the date of such meeting; (2) in the case of
determination of stockholders entitled to express consent to corporate action in
writing without a meeting, shall not be more than ten days from the date upon
which the resolution fixing the record date is adopted by the Board of
Directors; and (3) in the case of any other action, shall not be more than sixty
days prior to such other action. If no record date is fixed: (1) the record date
for determining stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the day next preceding the day
on which notice is given, or, if notice is waived, at the close of business on
the day next preceding the day on which the meeting is held; (2) the record date
for determining stockholders entitled to express consent to corporate action in
writing without a meeting, when no prior action of the Board of Directors is
required by law, shall be the first date on which a signed written consent
setting forth the action taken or proposed to be taken is delivered to the
corporation in accordance with applicable law, or, if prior action by the Board
of Directors is required by law, shall be at the close of business on the day on
which the Board of Directors adopts the resolution taking such prior action; and
(3) the record date for determining stockholders for any other purpose shall be
at the close of business on the day on which the Board of Directors adopts the
resolution relating thereto. A determination of stockholders of record entitled
to notice of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the Board of Directors may
fix a new record date for the adjourned meeting.
Section 2.9. List of Stockholders Entitled to Vote. The
Secretary shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten (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 shall also be produced and kept at the time and place of the meeting
during the whole time thereof and may be inspected by any
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stockholder who is present. Except as otherwise provided by law, the stock
ledger shall be the only evidence as to who are the stockholders entitled to
examine the stock ledger, the list of stockholders or the books of the
Corporation, or to vote in person or by proxy at any meeting of stockholders.
Section 2.10. Inspectors of Election. The Corporation shall in
advance of any meeting of stockholders, appoint one or more inspectors of
election, who may be employees of the Corporation, to act at the meeting or any
adjournment thereof and to make a written report thereof. The Corporation may
designate one or more persons as alternate inspectors to replace any inspector
who fails to act. In the event that no inspector so appointed or designated is
able to act at a meeting of stockholders, the person presiding at the meeting
shall appoint one or more inspectors to act at the meeting. Each inspector,
before entering upon the discharge of his or her duties, shall take and sign an
oath to execute faithfully the duties of inspector with strict impartiality and
according to the best of his or her ability. The inspector or inspectors so
appointed or designated shall (i) ascertain the number of shares of capital
stock of the Corporation outstanding and the voting power of each such share,
(ii) determine the shares of capital stock of the Corporation represented at the
meeting and the validity of proxies and ballots, (iii) count all votes and
ballots, (iv) determine and retain for a reasonable period a record of the
disposition of any challenges made to any determination by the inspectors, and
(v) certify their determination of the number of shares of capital stock of the
Corporation represented at the meeting and such inspectors' count of all votes
and ballots. Such certification and report shall specify such other information
as may be required by law. In determining the validity and counting of proxies
and ballots cast at any meeting of stockholders of the Corporation, the
inspectors may consider such information as is permitted by applicable law. No
person who is a candidate for an office at an election may serve as an inspector
at such election.
Section 2.11. Conduct of Meetings. The date and time of the
opening and the closing of the polls for each matter upon which the stockholders
will vote at a meeting shall be announced at the meeting by the person presiding
over the meeting. The Board of Directors may adopt by resolution such rules and
regulations for the conduct of the meeting of stockholders as it shall deem
appropriate. Except to the extent inconsistent with such rules and regulations
as adopted by the Board of Directors, the chairman of any meeting of
stockholders shall have the right and authority to prescribe such rules,
regulations and procedures and to do all such acts as, in the judgment of such
chairman, are appropriate for the proper conduct of the meeting. Such rules,
regulations or procedures, whether adopted by the Board of Directors or
prescribed by the chairman of the meeting, may include, without limitation, the
following: (i) the establishment of an agenda or order of business for the
meeting; (ii) rules and procedures for maintaining order at the meeting and the
safety of those present; (iii) limitations on attendance at or participation in
the meeting to stockholders of record of the corporation, their duly authorized
and constituted proxies or such other persons as the chairman of the meeting
shall determine; (iv) restrictions on entry to the meeting after the time fixed
for the commencement thereof; and (v) limitations on the time allotted to
questions or comments by participants. Unless and to the extent determined by
the Board of Directors or the chairman of the meeting, meetings of
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stockholders shall not be required to be held in accordance with the rules of
parliamentary procedure.
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Section 2.12. Notice of Stockholder Business and Nominations.
(A) Annual Meetings of Stockholders. (1) Nominations of
persons for election to the Board of Directors and the proposal of business to
be considered by the stockholders may be made at an annual meeting of
stockholders (a) pursuant to the Corporation's notice of meeting, (b) by or at
the direction of the Board of Directors or (c) by any stockholder of the
Corporation who was a stockholder of record at the time of giving of notice
provided for in this By-law, who is entitled to vote at the meeting and complies
with the notice procedures set forth in this By-law.
(2) For nominations or other business to be properly
brought before an annual meeting by a stockholder pursuant to clause (c) of
paragraph (A)(1) of this By-law, the stockholder must have given timely notice
thereof in writing to the Secretary of the Corporation and such other business
must otherwise be a proper matter for stockholder action. To be timely, a
stockholder's notice shall be delivered to the Secretary at the principal
executive offices of the Corporation not later than the close of business on the
60th day nor earlier than the close of business on the 90th day prior to the
first anniversary of the preceding year's annual meeting; provided, however,
that in the event that the date of the annual meeting is more than thirty (30)
days before or more than sixty (60) days after such anniversary date, notice by
the stockholder to be timely must be so delivered not earlier than the close of
business on the 90th day prior to such annual meeting and not later than the
close of business on the later of the 60th day prior to such annual meeting or
the 10th day following the day on which public announcement of the date of such
meeting is first made by the Corporation. In no event shall the public
announcement of an adjournment of an annual meeting commence a new time period
for the given of a stockholder's notice as described above. Such stockholder's
notice shall set forth (a) as to each person whom the stockholder proposes to
nominate for election or re-election as a director all information relating to
such person that is required to be disclosed in solicitations of proxies for
election of directors in an election contest, or is otherwise required, in each
case pursuant to Regulation 14A under the Securities Exchange Act of 1934, as
amended (the "Exchange Act") and Rule 14a-11 thereunder (including such person's
written consent to being named in the proxy statement as a nominee and to
serving as a director if elected); (b) as to any other business that the
stockholder proposes to bring before the meeting, a brief description of the
business desired to be brought before the meeting, the reasons for conducting
such business at the meeting and any material interest in such business of such
stockholder and the beneficial owner, if any, on whose behalf the proposal is
made; and (c) as to the stockholder giving the notice and the beneficial owner,
if any, on whose behalf the nomination or proposal is made (i) the name and
address of such stockholder, as they appear on the Corporation's books, and of
such beneficial owner and (ii) the class and number of shares of the Corporation
which are owned beneficially and of record by such stockholder and such
beneficial owner.
(3) Notwithstanding anything in the second sentence
of paragraph (A)(2) of this By-law to the contrary, in the event that the number
of directors to be elected to the Board of Directors of the Corporation is
increased and there is no public
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announcement by the Corporation naming all of the nominees for director or
specifying the size of the increased Board of Directors at least 70 days prior
to the first anniversary of the preceding year's annual meeting, a stockholder's
notice required by this By-law shall also 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 at the principal executive offices of the
Corporation not later than the close of business on the 10th day following the
day on which such public announcement is first made by the Corporation.
(B) Special Meetings of Stockholders. Only such business shall
be conducted at a special meeting of stockholders as shall have been brought
before the meeting pursuant to the Corporation's notice of meeting. Nominations
of persons for election to the Board of Directors may be made at a special
meeting of stockholders at which directors are to be elected pursuant to the
Corporation's notice of meeting (a) by or at the direction of the Board of
Directors or (b) provided that the Board of Directors has determined that
directors shall be elected at such meeting, by any stockholder of the
Corporation who is a stockholder or record at the time of giving of notice
provided for in this By-law, who shall be entitled to vote at the meeting and
who complies with the notice procedures set forth in this By-law. In the event
the Corporation calls a special meeting of stockholders for the purpose of
electing one or more directors to the Board of Directors, any such stockholder
may nominate a person or persons (as the case may be) for election to such
position(s) as specified in the Corporation's notice of meeting, if the
stockholder's notice required by paragraph (A)(2) of this By-law shall be
delivered to the Secretary at the principal executive offices of the Corporation
not earlier than the close of business on the 90th day prior to such special
meeting and not later than the close of business on the later of the 60th day
prior to such special meeting, or the 10th day following the day on which public
announcement if first made of the date of the special meeting and of the
nominees proposed by the Board of Directors to be elected at such meeting. In no
event shall the public announcement of an adjournment of a special meeting
commence a new time period for the giving of a stockholder's notice as described
above.
(C) General. (1) Only such persons who are nominated in
accordance with the procedures set forth in this By-law shall be eligible to
serve as directors and only such business shall be conducted at a meeting of
stockholders as shall have been brought before the meeting in accordance with
the procedures set forth in this By-law. Except as otherwise provided by law,
the Restated Certificate of Incorporation or these By-laws, the Chairman of the
meeting shall have the power and duty to determine whether a nomination or any
business proposed to be brought before the meeting was made or proposed, as the
case may be, in accordance with the procedures set forth in this By-law and, if
any proposed nomination or business is not in compliance with this By-law, to
declare that such defective proposal or nomination shall be disregarded.
(2) For purposes of this By-law, "public
announcement" shall mean disclosure in a press release reported by the Dow Jones
News Service, Associated Press or comparable national news service or in a
document publicly filed by the
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Corporation with the Securities and Exchange Commission pursuant to Section 13,
14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this
By-law, a stockholder shall also comply with all applicable requirements of the
Exchange Act and the rules and regulations thereunder with respect to the
matters set forth in this By-law. Nothing in this By-Law shall be deemed to
affect any rights (i) of stockholders to request inclusion of proposals in the
Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act or
(ii) of the holders of any series of Preferred Stock to elect directors under
specified circumstances.
ARTICLE III
BOARD OF DIRECTORS
Section 3.1. Number; Qualifications. The Board of Directors
shall consist of one or more members, the number thereof to be determined from
time to time by resolution of the Board of Directors. Directors need not be
stockholders.
Section 3.2. Election; Resignation; Vacancies. At each annual
meeting of stockholders, the stockholders shall elect directors each of whom
shall hold office for a term of three (3) years or until a successor is elected
and qualified, in accordance with the Restated Certificate of Incorporation. Any
director may resign at any time upon written notice to the Corporation. Any
newly created directorship or any vacancy occurring in the Board of Directors
for any cause may be filled in accordance with the Restated Certificate of
Incorporation.
Section 3.3. Regular Meetings. Regular meetings of the Board
of Directors may be held at such places within or without the State of Delaware
and at such times as the Board of Directors may from time to time determine. The
first meeting of each newly elected Board of Directors shall be held at the same
place as, and immediately after, the annual meeting of stockholders. No notice
of the meeting shall be necessary to the newly elected directors in order
legally to constitute the meeting, provided a quorum shall be present. If the
meeting is not held at such time and place, or in the event a unanimous written
consent of stockholders is filed in lieu of the annual meeting of stockholders,
the meeting may be held at such time and place as is specified in a notice given
as provided below for special meetings of the Board of Directors, or as
specified in a written waiver signed by all of the directors.
Section 3.4. Special Meetings. Special meetings of the Board
of Directors may be held at any time or place within or without the State of
Delaware whenever called by the Chairman of the Board or the President or by the
Secretary upon the written request of two (2) directors. Written notice of
special meetings of the Board shall be given to each director at least
twenty-four hours before the time of the meeting. Attendance at a meeting by a
director shall constitute a conclusive waiver of any objections made by any
person
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with respect to the notice given to such director unless such attendance is
solely for the purpose of objection.
Section 3.5. Telephonic Meetings Permitted. Members of the
Board of Directors, or any committee designated by the Board of Directors, may
participate in a meeting thereof by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting pursuant to this
By-law shall constitute presence in person at such meeting.
Section 3.6. Quorum; Vote Required for Action. At all meetings
of the Board of Directors a majority of the whole Board of Directors shall
constitute a quorum for the transaction of business. Except in cases in which
the Restated Certificate of Incorporation, these By-laws or applicable law
otherwise provides, the vote of a majority of the directors present at a meeting
at which a quorum is present shall be the act of the Board of Directors. If a
quorum if not present at any meeting of the Board of Directors, the directors
present thereat may adjourn the meeting from time to time, without notice other
than announcement at the meeting, until a quorum is present. At such adjourned
meeting at which a quorum is present or represented any business may be
transacted that might have been transacted at the meeting as originally
notified.
Section 3.7. Organization. Meetings of the Board of Directors
shall be presided over by the Chairman of the Board, if any, or in his absence
by the Vice Chairman of the Board, if any, or in his absence by the President,
or in their absence by a chairman chosen at the meeting. The Secretary shall act
as secretary of the meeting, but in his absence the chairman of the meeting may
appoint any person to act as secretary of the meeting.
Section 3.8. Action by Written Consent of Directors. Unless
otherwise restricted by the Restated Certificate of Incorporation or these
By-laws, any action required or permitted to be taken at any meeting of the
Board of Directors, or of any committee thereof, may be taken without a meeting
if all members of the Board of Directors or such committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the Board of Directors or such committee.
Section 3.9. Powers. The business of the Corporation shall be
managed by its Board, which may exercise all such powers of the Corporation and
do all such lawful acts and things as are not by statute or by the Restated
Certificate of Incorporation or by these By-laws directed or required to be
exercised or done by the stockholders.
Section 3.10. Compensation of Directors. The directors may be
paid their expenses, if any, of attending meetings of the Board and may be paid
a fixed sum for attendance at each meeting of the Board or stated salaries as
directors. No such payment shall preclude any director from serving the
Corporation in any other capacity and
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receiving compensation therefor. Members of special or standing committees may
similarly be allowed compensation for attending committee meetings.
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ARTICLE IV
COMMITTEES
Section 4.1. Committees. The Board of Directors may designate
one or more committees, each committee to consist of one or more of the
directors of the Corporation. The Board of Directors may designate one or more
directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. In the absence or
disqualification of a member of the committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in place of any such absent or disqualified
member. Any such committee, to the extent permitted by law and to the extent
provided in the resolution of the Board of Directors, shall have and may
exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the corporation, and may authorize the
seal of the corporation to be affixed to all papers which may require it. The
committee shall keep regular minutes of their proceedings and report the same to
the Board when required.
Section 4.2. Committee Rules. Unless the Board of Directors
otherwise provides, each committee designated by the Board of Directors may
make, alter and repeal rules for the conduct of its business. In the absence of
such rules each committee shall conduct its business in the same manner as the
Board of Directors conducts its business pursuant to Article III of these
By-laws.
ARTICLE V
NOTICES
Section 5.1. Manner of Notice. Except as otherwise provided
herein, notices to directors and stockholders shall be in writing and delivered
personally or mailed to the directors or stockholders at their addresses
appearing on the books of the Corporation. Notice to directors may be given by
telegram, telegraph, telecopier, telephone or other means of electronic
transmission.
Section 5.2. Waiver of Notice. Any notice required to be given
under the provisions of applicable law or of the Restated Certificate of
Incorporation or of these By-laws may be waived in writing, either before or
after the event requiring such notice if the waiver is signed by the person or
persons entitled to said notice.
ARTICLE VI
OFFICERS
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Section 6.1. Officers; Election; Qualifications; Resignation;
Removal; Vacancies. The Board of Directors shall elect a President and
Secretary, and it may, if it so determines, choose a Chairman of the Board and a
Vice Chairman of the Board from among its members. The Board of Directors may
also choose one or more Vice Presidents, one or more Assistant Secretaries, a
Treasurer and one or more Assistant Treasurers. Each such officer shall hold
office until the first meeting of the Board of Directors after the annual
meeting of stockholders next succeeding his election, and until his successor is
elected and qualified or until his earlier resignation or removal. Any officer
may resign at any time upon written notice to the corporation. The Board of
Directors may remove any officer with or without cause at any time, but such
removal shall be without prejudice to the contractual rights of such officer, if
any, with the Corporation. Any number of offices may be held by the same person.
Section 6.2. Powers and Duties of Officers. The officers of
the Corporation shall have such powers and duties in the management of the
Corporation as may be prescribed in a resolution by the Board of Directors and,
to the extent not so provided, as generally pertain to their respective offices,
subject to the control of the Board of Directors. The Board of Directors may
require any officer, agent or employee to give security for the faithful
performance of his duties.
Section 6.3. Executive Officers. The Board of Directors at its
first meeting after each annual meeting of stockholders (or pursuant to a
unanimous consent in lieu thereof) shall choose a Chairman of the Board from
among the directors, and shall choose a President, one or more Vice Presidents,
a Secretary and a Treasurer, none of whom need be a member of the Board.
Section 6.4. Other Officers. The Board of Directors may
appoint such other officers and agents as it shall deem necessary who shall hold
their officers for such terms and shall exercise such powers and perform such
duties as are determined from time to time by the Board of Directors.
Section 6.5. Compensation. The compensation of all officers
and agents of the Corporation shall be fixed by the Board of Directors.
Section 6.6. Term of Office. The officers of the Corporation
shall hold office until their successors are chosen and qualify. Any officer
elected or appointed by the Board of Directors may be removed, with or without
cause, at any time by the affirmative vote of a majority of the Board. Any
vacancy occurring in any office of the Corporation by death, resignation,
removal or otherwise shall be filled by the Board of Directors.
Section 6.7. Chairman of the Board. The Chairman of the Board
shall be the chief executive officer of the Corporation, shall preside at all
meetings of the stockholders and the Board of Directors, shall be ex officio a
member of all standing committees and shall have general and active management
of the business of the Corporation, as that authority is delegated to him by the
Board.
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Section 6.8. Powers of the Chairman. The Chairman of the Board
may execute bonds, mortgages and other contracts requiring a seal, under the
seal of the Corporation, except where required or permitted by law to be
otherwise signed and executed and except where the signing and execution thereof
shall be delegated by the Board of Directors to some other officer or agent of
the Corporation. Unless the Board of Directors specifies otherwise, the Chairman
of the Board shall have authority to vote (or grant a proxy with respect to) any
securities held or owned by the Corporation.
Section 6.9. President. The President shall be the chief
operating officer of the Corporation and shall supervise the day-to-day
operation of the business of the Corporation, as that authority is delegated to
him by the Board of Directors. He may execute all bonds, mortgages and other
contracts in the ordinary course of the business of the Corporation, except
where required or permitted by law to be otherwise signed and executed. Unless
the Board specifies otherwise, the President shall, in the absence or disability
of the Chairman of the Board, perform the duties and exercise the powers of the
Chairman of the Board.
Section 6.10. Vice Presidents. The Vice Presidents in the
order of their seniority, unless otherwise determined by the Board or the
Chairman of the Board, shall, in the absence or disability of the President
perform the duties and exercise the powers of the President. They shall perform
such other duties and have such other powers as the Board may from time to time
prescribe.
Section 6.11. Secretary. The Secretary shall attend all
meetings of the Board and all meetings of the stockholders and record all the
proceedings of such meetings in a book or books to be kept for that purpose and
shall perform like duties for the standing committees when required. The
Secretary shall give, or cause to be given, required notices of all meetings of
the stockholders and the Board, and shall perform such other duties as may be
prescribed by the Board or Chairman of the Board, under whose supervision he
shall be. The Secretary shall keep in safe custody the seal of the Corporation,
if any, and, if there is a seal of the Corporation, when authorized by the
Board, shall affix the same to any instrument requiring it and, when so affixed,
it may be attested by the Secretary's signature or by the signature of the
Treasurer or an Assistant Secretary. The Secretary shall perform such other
duties and have such other powers as the Board may from time to time prescribe.
Section 6.12. Assistant Secretaries. The Assistant Secretaries
in the order of their seniority, unless otherwise determined by the Board,
shall, in the absence or disability of the Secretary, perform the duties and
exercise the powers of the Secretary. They shall perform such other duties and
have such other powers as the Board may from time to time prescribe.
Section 6.13. Treasurer. The Treasurer shall have the custody
of the corporate funds and securities, shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation, and shall
deposit all monies and
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other valuable effects in the name and to the credit of the Corporation in such
depositories as may be designated by the Board. The Treasurer shall perform such
other duties and have such other powers as the Board may from time to time
prescribe.
Section 6.14. Powers of Treasurer. The Treasurer shall
disburse the funds of the Corporation as may be ordered by the Board, taking
proper vouchers for such disbursements, and shall render to the Chairman of the
Board and the Board, at its regular meetings, or when the Board so requires, an
account of all transactions of the Treasurer and of the financial condition of
the Corporation.
Section 6.15. Bond. If required by the Board, the Treasurer
shall give the Corporation a bond (which shall be renewed every six years) in
such sum and with such surety or sureties as shall be satisfactory to the Board
for the faithful performance of the duties of the office of Treasurer and for
the restoration to the Corporation, in case of the Treasurer's death,
resignation, retirement or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in his possession or under the
Treasurer's control belonging to the Corporation.
Section 6.16. Assistant Treasurer. The Assistant Treasurers in
the order of their seniority, unless otherwise determined by the Board, shall,
in the absence or disability of the Treasurer, perform the duties and exercise
the powers of the Treasurer. They shall perform such other duties and have such
other powers as the Board may from time to time prescribe.
ARTICLE VII
STOCK
Section 7.1. Certificates. Every holder of stock shall be
entitled to have a certificate signed by or in the name of the corporation by
the Chairman or Vice Chairman of the Board of Directors, if any, or the
President or a Vice President, and by the Treasurer or an Assistant Treasurer,
or the Secretary or an Assistant Secretary, of the Corporation certifying the
number of shares owned by such stockholder in the Corporation. Any of or all the
signatures on the certificate may be a facsimile. In case any officer, transfer
agent or registrar who has signed or whose facsimile signature has been placed
upon a certificate shall have ceased to be such officer, transfer agent, or
registrar before such certificate is issued, it may be issued by the Corporation
with the same effect as if he were such officer, transfer agent, or registrar at
the date of issue.
Section 7.2. Lost, Stolen or Destroyed Stock Certificates;
Issuance of New Certificates. The Corporation may issue a new certificate of
stock in the place of any certificate theretofore issued by it, alleged to have
been lost, stolen or destroyed, and the Corporation may require the owner of the
lost, stolen or destroyed certificate, or his legal representative, to give the
corporation a bond sufficient to indemnify it against any claim
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that may be made against it on account of the alleged loss, theft or destruction
of any such certificate or the issuance of such new certificate.
ARTICLE VIII
INDEMNIFICATION
Section 8.1. Right to Indemnification. The Corporation shall
indemnify and hold harmless, to the fullest extent permitted by applicable law
as it presently exists or may hereafter be amended, any person (an "Indemnitee")
who was or is made or is threatened to be made a party or is otherwise involved
in any action, suit or proceeding, whether civil, criminal, administrative or
investigative (a "proceeding"), by reason of the fact that he, or a person for
whom he is the legal representative, is or was a director or officer of the
corporation or, while a director or officer of the Corporation, is or was
serving at the written request of the Corporation as a director, officer,
employee or agent of another corporation or of a partnership, joint venture,
trust, enterprise or nonprofit entity, including service with respect to
employee benefit plans, against all liability and loss suffered and expenses
(including attorneys' fees) reasonably incurred by such Indemnitee.
Notwithstanding the preceding sentence, except as otherwise provided in Section
8.3, the Corporation shall be required to indemnify an Indemnitee in connection
with a proceeding (or part thereof) commenced by such Indemnitee only if the
commencement of such proceeding (or part thereof) by the Indemnitee was
authorized by the Board of Directors.
Section 8.2. Prepayment of Expenses. The Corporation shall pay
the expenses (including attorneys' fees) incurred by an Indemnitee in defending
any proceeding in advance of its final disposition, provided, however, that, to
the extent required by law, such payment of expenses in advance of the final
disposition of the proceeding shall be made only upon receipt of an undertaking
by the Indemnitee to repay all amounts advanced if it should be ultimately
determined that the Indemnitee is not entitled to be indemnified under this
Article VIII or otherwise.
Section 8.3. Claims. If a claim for indemnification or payment
of expenses under this Article VIII is not paid in full within sixty (60) days
after a written claim therefor by the Indemnitee has been received by the
Corporation, the Indemnitee may file suit to recover the unpaid amount of such
claim and, if successful in whole or in part, shall be entitled to be paid the
expense of prosecuting such claim. In any such action the Corporation shall have
the burden of proving that the Indemnitee is not entitled to the requested
indemnification or payment of expenses under applicable law.
Section 8.4. Nonexclusivity of Rights. The rights conferred on
any Indemnitee by this Article VIII shall not be exclusive of any other rights
which such Indemnitee may have or hereafter acquire under any statute, provision
of the Restated Certificate of Incorporation, these By-laws, agreement, vote of
stockholders or disinterested directors or otherwise.
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Section 8.5. Other Sources. The Corporation's obligation, if
any, to indemnify or to advance expenses to any Indemnitee who was or is serving
at its request as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, enterprise or nonprofit entity shall be
reduced by any amount such Indemnitee may collect as indemnification or
advancement of expenses from such other corporation, partnership, joint venture,
trust, enterprise or non-profit enterprise.
Section 8.6. Amendment or Repeal. Any repeal or modification
of the foregoing provisions of this Article VIII shall not adversely affect any
right or protection hereunder of any Indemnitee in respect of any act or
omission occurring prior to the time of such repeal or modification.
Section 8.7. Other Indemnification and Prepayment of Expenses.
This Article VIII shall not limit the right of the Corporation, to the extent
and in the manner permitted by law, to indemnify and to advance expenses to
persons other than Indemnitees when and as authorized by appropriate corporate
action.
ARTICLE IX
MISCELLANEOUS
Section 9.1. Fiscal Year. The fiscal year of the Corporation
shall be determined by resolution of the Board of Directors.
Section 9.2. Seal. The corporate seal shall have the name of
the Corporation inscribed thereon and shall be in such form as may be approved
from time to time by the Board of Directors.
Section 9.3. Waiver of Notice of Meetings of Stockholders,
Directors and Committees. Any written waiver of notice, signed by the person
entitled to notice, 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 a
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. Neither the business to be transacted at nor the purpose of any
regular or special meeting of the stockholders, directors, or members of a
committee of directors need be specified in any written waiver of notice.
Section 9.4. Interested Directors; Quorum. No contract or
transaction between the Corporation and one or more of its directors or
officers, or between the corporation and any other corporation, partnership,
association, or other organization in which one or more of its directors or
officers are directors or officers, or have a financial interest, shall be void
or voidable solely for this reason, or solely because the director or officer is
present at or participates in the meeting of the Board of Directors or committee
thereof which authorizes the contract or transaction, or solely because his or
their votes are
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counted for such purpose, if: (1) the material facts as to his relationship or
interest and as to the contract or transaction are disclosed or are known to the
Board of Directors or the committee, and the Board of Directors or committee in
good faith authorizes the contract or transaction by the affirmative votes of a
majority of the disinterested directors, even though the disinterested directors
be less than a quorum; or (2) the material facts as to his relationship or
interest and as to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stockholders; or (3) the
contract or transaction is fair as to the Corporation as of the time it is
authorized, approved or ratified, by the Board of Directors, a committee
thereof, or the stockholders. Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the Board of Directors or
of a committee which authorizes the contract or transaction.
Section 9.5. Form of Records. Any records maintained by the
Corporation in the regular course of its business, including its stock ledger,
books of account, and minute books, may be kept on, or be in the form of, punch
cards, magnetic tape, photographs, microphotographs, or any other information
storage device, provided that the records so kept can be converted into clearly
legible form within a reasonable time.
Section 9.6. Amendment. These By-laws may be altered or
repealed, and new made, as provided in the Restated Certificate of
Incorporation.
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