EXHIBIT 3.2
BY-LAWS
OF
KT HOLDING COMPANY
A Delaware Corporation
Effective November 17, 1999
TABLE OF CONTENTS
Page
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ARTICLE I
OFFICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1. Registered Office . . . . . . . . . . . . . . . 1
Section 2. Other Offices . . . . . . . . . . . . . . . . . 1
ARTICLE II
MEETINGS OF STOCKHOLDERS . . . . . . . . . . . . . . . . . . . . . . 1
Section 1. Place of Meetings . . . . . . . . . . . . . . . 1
Section 2. Annual Meetings . . . . . . . . . . . . . . . . 2
Section 3. Special Meetings . . . . . . . . . . . . . . . . 2
Section 4. Quorum . . . . . . . . . . . . . . . . . . . . . 2
Section 5. Proxies . . . . . . . . . . . . . . . . . . . . 2
Section 6. Voting . . . . . . . . . . . . . . . . . . . . . 3
Section 7. Consent of Stockholders in Lieu of Meeting . . . 3
Section 8. Nature of Business at Meetings of
Stockholders . . . . . . . . . . . . . . . . . 4
Section 9. List of Stockholders Entitled to Vote . . . . . 4
Section 10. Stock Ledger . . . . . . . . . . . . . . . . . . 4
Section 11. Record Date . . . . . . . . . . . . . . . . . . 4
Section 12. Inspectors of Election . . . . . . . . . . . . . 5
Section 13. Conduct of Meetings . . . . . . . . . . . . . . 6
ARTICLE III
DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 1. Number and Election of Directors . . . . . . . . 6
Section 2. Nomination of Directors . . . . . . . . . . . . 7
Section 3. Vacancies . . . . . . . . . . . . . . . . . . . 7
Section 4. Duties and Powers . . . . . . . . . . . . . . . 7
Section 5. Organization . . . . . . . . . . . . . . . . . . 7
Section 6. Resignations and Removals of Directors . . . . . 8
Section 7. Meetings . . . . . . . . . . . . . . . . . . . . 8
Section 8. Quorum . . . . . . . . . . . . . . . . . . . . . 8
Section 9. Actions of Board . . . . . . . . . . . . . . . . 8
Section 10. Meetings by Means of Conference Telephone . . . 9
Section 11. Committees . . . . . . . . . . . . . . . . . . . 9
Section 12. Compensation . . . . . . . . . . . . . . . . . . 9
Section 13. Interested Directors . . . . . . . . . . . . . . 9
ARTICLE IV
OFFICERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 1. General . . . . . . . . . . . . . . . . . . . 10
Section 2. Election . . . . . . . . . . . . . . . . . . . 10
Section 3. Voting Securities Owned by the
Corporation . . . . . . . . . . . . . . . . 11
Section 4. Chairman of the Board of Directors . . . . . . 11
Section 5. President . . . . . . . . . . . . . . . . . . 11
Section 6. Executive Vice Presidents . . . . . . . . . . 11
Section 7. Secretary . . . . . . . . . . . . . . . . . . 12
Section 8. Treasurer . . . . . . . . . . . . . . . . . . 12
Section 9. Assistant Secretaries . . . . . . . . . . . . 13
Section 10. Assistant Treasurers . . . . . . . . . . . . . 13
Section 11. Other Officers . . . . . . . . . . . . . . . . 13
ARTICLE V
STOCK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 1. Form of Certificates . . . . . . . . . . . . . 13
Section 2. Signatures . . . . . . . . . . . . . . . . . . 14
Section 3. Lost, Destroyed, Stolen or Mutilated
Certificates . . . . . . . . . . . . . . . . 14
Section 4. Transfers . . . . . . . . . . . . . . . . . . 14
Section 5. Transfer and Registry Agents . . . . . . . . . 14
Section 6. Beneficial Owners . . . . . . . . . . . . . . 14
ARTICLE VI
NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 1. Notices . . . . . . . . . . . . . . . . . . . 15
Section 2. Waivers of Notice . . . . . . . . . . . . . . 15
ARTICLE VII
GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 1. Dividends . . . . . . . . . . . . . . . . . . 16
Section 2. Disbursements . . . . . . . . . . . . . . . . 16
Section 3. Fiscal Year . . . . . . . . . . . . . . . . . 16
Section 4. Corporate Seal . . . . . . . . . . . . . . . . 16
ARTICLE VIII
INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 1. Power to Indemnify in Actions, Suits or
Proceedings Other than Those by or in
the Right of the Corporation . . . . . . . . 16
Section 2. Power to Indemnify in Actions, Suits or
Proceedings by or in the Right of the
Corporation . . . . . . . . . . . . . . . . 17
Section 3. Authorization of Indemnification . . . . . . . 17
Section 4. Good Faith Defined . . . . . . . . . . . . . . 18
Section 5. Indemnification by a Court . . . . . . . . . . 18
Section 6. Expenses Payable in Advance . . . . . . . . . 19
Section 7. Nonexclusivity of Indemnification and
Advancement of Expenses . . . . . . . . . . 19
Section 8. Insurance . . . . . . . . . . . . . . . . . . 19
Section 9. Certain Definitions . . . . . . . . . . . . . 19
Section 10. Survival of Indemnification and
Advancement of Expenses . . . . . . . . . . 20
Section 11. Limitation on Indemnification . . . . . . . . 20
Section 12. Indemnification of Employees and Agents . . . 20
ARTICLE IX
AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 1. Amendments . . . . . . . . . . . . . . . . . . 21
Section 2. Entire Board of Directors . . . . . . . . . . 21
BY-LAWS
OF
KT Holding Company
(hereinafter called the "Corporation")
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the
Corporation shall be in the City of Wilmington, County of New Castle,
State of Delaware.
Section 2. Other Offices. The Corporation may also have offices
at such other places, both within and without the State of Delaware, as
the Board of Directors may from time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for
the election of directors or for any other purpose shall be held at such
time and place, either within or without the State of Delaware, as shall
be designated from time to time by the Board of Directors and stated in
the notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual Meetings. The annual meetings of stockholders
shall be held on such date and at such time as shall be designated from
time to time by the Board of Directors and stated in the notice of the
meeting, at which meetings the stockholders shall elect directors, and
transact such other business as may properly be brought before the
meeting. Written notice of the annual meeting stating the place, date and
hour of the meeting shall be given to each stockholder entitled to vote at
such meeting not less than ten nor more than sixty days before the date of
the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law
or by the certificate of incorporation of the Corporation, as amended and
restated from time to time (the "Certificate of Incorporation"), special
meetings of stockholders, for any purpose or purposes, may be called by
the Chief Executive Officer or a majority of the directors then in office.
Any such request for a special meeting of the stockholders shall state the
purpose or purposes of the proposed meeting, and at the special meeting,
only such business shall be conducted as shall be specified in the notice
of meeting (or any supplement thereto) given by or at the direction of the
Board of Directors. Written notice of a special meeting stating the place,
date and hour of the meeting and the purpose or purposes for which the
meeting is called shall be given not less than ten nor more than sixty
days before the date of the meeting to each stockholder entitled to vote
at such meeting.
Section 4. Quorum. Except as otherwise required by law or by
the Certificate of Incorporation, the holders of a majority of the capital
stock issued and outstanding and entitled to vote thereat, present in
person or represented by proxy, shall constitute a quorum at all meetings
of the stockholders for the transaction of business. A quorum, once
established, shall not be broken by the withdrawal of enough votes to
leave less than a quorum. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled
to vote thereat, present in person or represented by proxy, shall have
power to adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present or
represented. At such adjourned meeting at which a quorum shall be present
or represented, any business may be transacted which might have been
transacted at the meeting as originally noticed. If the adjournment is for
more than thirty days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall
be given to each stockholder entitled to vote at the meeting not less than
ten nor more than sixty days before the date of the meeting.
Section 5. Proxies. Any stockholder entitled to vote may do so
in person or by his or her proxy appointed by an instrument in writing
subscribed by such stockholder or by his or her attorney thereunto
authorized, delivered to the Secretary of the meeting; provided, however,
that no proxy shall be voted or acted upon after three years from its
date, unless said proxy provides for a longer period. Without limiting the
manner in which a stockholder may authorize another person or persons to
act for him or her as proxy, either of the following shall constitute a
valid means by which a stockholder may grant such authority:
(i) A stockholder may execute a writing
authorizing another person or persons to act for him or her as
proxy. Execution may be accomplished by the stockholder or his
or her authorized officer, director, employee or agent signing
such writing or causing his or her signature to be affixed to
such writing by any reasonable means, including, but not limited
to, by facsimile signature.
(ii) A stockholder may authorize another
person or persons to act for him or her as proxy by transmitting
or authorizing the transmission of a telegram or other means of
electronic transmission to the person who will be the holder of
the proxy or to a proxy solicitation firm, proxy support service
organization or like agent duly authorized by the person who will
be the holder of the proxy to receive such transmission, provided
that any such telegram or other means of electronic transmission
must either set forth or be submitted with information from which
it can be determined that the telegram or other electronic
transmission was authorized by the stockholder.
Any copy, facsimile telecommunication or other reliable
reproduction of the writing or transmission authorizing another person or
persons to act as proxy for a stockholder may be substituted or used in
lieu of the original writing or transmission for any and all purposes for
which the original writing or transmission could be used; provided that
such copy, facsimile telecommunication or other reproduction shall be a
complete reproduction of the entire original writing or transmission.
Section 6. Voting. At all meetings of the stockholders at which
a quorum is present, except as otherwise required by law, the Certificate
of Incorporation or these By-Laws, any question brought before any meeting
of stockholders shall be decided by the affirmative vote of the holders of
a majority of the total number of votes of the capital stock present in
person or represented by proxy and entitled to vote on such question,
voting as a single class. The Board of Directors, in its discretion, or
the officer of the Corporation presiding at a meeting of stockholders, in
his or her discretion, may require that any votes cast at such meeting
shall be cast by written ballot.
Section 7. Consent of Stockholders in Lieu of Meeting. Any
action required or permitted to be taken by the stockholders of the
Corporation must be effected at a duly called Annual or Special Meeting of
Stockholders of the Corporation and may not be effected by any consent in
writing by such stockholders unless all of the stockholders entitled to
vote thereon consent thereto in writing.
Section 8. Nature of Business at Meetings of Stockholders. No
business may be transacted at an annual meeting of stockholders, other
than business that is either (a) specified in the notice of meeting (or
any supplement thereto) given by or at the direction of the Board of
Directors (or any duly authorized committee thereof), (b) otherwise
properly brought before the annual meeting by or at the direction of the
Board of Directors (or any duly authorized committee thereof) or (c)
otherwise properly brought before the annual meeting by any stockholder of
the Company who is a record or beneficial owner of shares on the record
date for the determination of stockholders entitled to vote at such annual
meeting. If the Chairman of an annual meeting determines that business was
not properly brought before the annual meeting in accordance with this
section 8, the Chairman shall declare to the meeting that the business was
not properly brought before the meeting and such business shall not be
transacted.
Section 9. List of Stockholders Entitled to Vote. The officer
of the Corporation who has charge of the stock ledger of the Corporation
shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten days prior to the meeting,
either at a place within the city where the meeting is to be held, which
place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall
also be produced and kept at the time and place of the meeting during the
whole time thereof, and may be inspected by any stockholder of the
Corporation who is present.
Section 10. Stock Ledger. The stock ledger of the Corporation
shall be the only evidence as to who are the stockholders entitled to
examine the stock ledger, the list required by Section 9 of this Article
II or the books of the Corporation, or to vote in person or by proxy at
any meeting of stockholders.
Section 11. Record Date.
(a) 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 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 not be more than sixty nor less than ten days
before the date of such meeting; and (2) 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; and (2) 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.
(b) In order that the Corporation may determine the
stockholders entitled to consent to corporate action in writing without a
meeting, 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 shall not be
more than ten days after the date upon which the resolution fixing the
record date is adopted by the Board of Directors. If no record date has
been fixed by the Board of Directors, the record date for determining
stockholders entitled to consent to corporate action in writing without a
meeting, when no prior action by 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 by
delivery to its registered office in the State of Delaware, its principal
place of business, or an officer or agent of the Corporation having custody
of the book in which proceedings of meetings of stockholders are recorded.
Delivery made to a corporation's registered office shall be by hand or by
certified or registered mail, return receipt requested. If no record date
has been fixed by the Board of Directors and prior action by the Board of
Directors is required by law, the record date for determining stockholders
entitled to consent to corporate action in writing without a meeting shall
be at the close of business on the day on which the Board of Directors
adopts the resolutions taking such prior action.
Section 12. Inspectors of Election. In advance of any meeting of
stockholders, the Board by resolution or the Chairman or President shall
appoint one or more inspectors of election to act at the meeting and make
a written report thereof. One or more other persons may be designated as
alternate inspectors to replace any inspector who fails to act. If no
inspector or alternate is present, ready and willing to act at a meeting
of stockholders, the Chairman of the meeting shall appoint one or more
inspectors to act at the meeting. Unless otherwise required by law,
inspectors may be officers, employees or agents of the Corporation. Each
inspector, before entering upon the discharge of his or her duties, shall
take and sign an oath faithfully to execute the duties of inspector with
strict impartiality and according to the best of his or her ability. The
inspector shall have the duties prescribed by law and shall take charge of
the polls and, when the vote is completed, shall make a certificate of the
result of the vote taken and of such other facts as may be required by
law.
Section 13. Conduct of Meetings. The Board of Directors of the
Corporation may adopt by resolution such rules and regulations for the
conduct of the meeting of the 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 the
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) the determination of when the
polls shall open and close for any given matter to be voted on at the
meeting; (iii) rules and procedures for maintaining order at the meeting
and the safety of those present; (iv) 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; (v) restrictions on entry to the
meeting after the time fixed for the commencement thereof; and (vi)
limitations on the time allotted to questions or comments by participants.
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The Board of
Directors shall consist of not less than one nor more than twenty-five
members, the exact number of which shall initially be fixed by the
Incorporator and thereafter from time to time by the Board of Directors.
Except as provided in Section 3 of this Article III, directors shall be
elected by a plurality of the votes cast at the Annual Meetings of
Stockholders and each director so elected shall hold office until the next
Annual Meeting of Stockholders and until such director's successor is duly
elected and qualified, or until such director's earlier death, resignation
or removal. Any director may resign at any time upon written notice to the
Corporation. Directors need not be stockholders.
Section 2. Nomination of Directors. Only persons who are
nominated in accordance with the following procedures shall be eligible
for election as directors of the Company, except as may be otherwise
provided in the Certificate of Incorporation with respect to the right of
holders of preferred stock of the Corporation to nominate and elect a
specified number of directors in certain circumstances. Nominations of
persons for election to the Board of Directors may be made at any annual
meeting of stockholders, or at any special meeting of stockholders called
for the purpose of electing directors, (a) by or at the direction of the
Board of Directors (or any duly authorized committee thereof) or (b) by
any stockholder of the Company who is a record or beneficial owner of
shares on the record date for the determination of stockholders entitled
to vote at such meeting.
No person shall be eligible for election as a director of the
Company unless nominated in accordance with this Section 2. If the Chairman
of the meeting determines that a nomination was not made in accordance with
this Section 2, the Chairman shall declare to the meeting that the
nomination was defective and such defective nomination shall be
disregarded.
Section 3. Vacancies. Subject to the terms of any one or more
classes or series of preferred stock, any vacancy on the Board of
Directors that results from an increase in the number of directors may be
filled by a majority of the directors then in office, provided that a
quorum is present, and any other vacancy occurring on the Board of
Directors may be filled by a majority of the Board of Directors then in
office, even if less than a quorum, or by a sole remaining director.
Notwithstanding the foregoing, whenever the holders of any one or more
class or classes or series of preferred stock of the Corporation shall
have the right, voting separately as a class, to elect directors at an
annual or special meeting of stockholders, the election, term of office,
filling of vacancies and other features of such directorships shall be
governed by the Certificate of Incorporation.
Section 4. Duties and Powers. The business of the Corporation
shall be managed by or under the direction of the Board of Directors 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 Certificate of
Incorporation or by these By-Laws required to be exercised or done by the
stockholders.
Section 5. Organization. At each meeting of the Board of
Directors, the Chairman of the Board of Directors, or, in his or her
absence, a director chosen by a majority of the directors present, shall
act as Chairman. The Secretary of the Corporation shall act as Secretary
at each meeting of the Board of Directors. In case the Secretary shall be
absent from any meeting of the Board of Directors, an Assistant Secretary
shall perform the duties of Secretary at such meeting; and in the absence
from any such meeting of the Secretary and all the Assistant Secretaries,
the Chairman of the meeting may appoint any person to act as Secretary of
the meeting.
Section 6. Resignations and Removals of Directors. Any director
of the Corporation may resign at any time, by giving written notice to the
Chairman of the Board of Directors, the President or the Secretary of the
Corporation. Such resignation shall take effect at the time therein
specified or, if no time is specified, immediately; and, unless otherwise
specified in such notice, the acceptance of such resignation shall not be
necessary to make it effective. Except as otherwise required by law and
subject to the rights, if any, of the holders of shares of preferred stock
then outstanding, any director or the entire Board of Directors may be
removed from office at any time, but only for cause, and only by the
affirmative vote of the holders of at least a majority in voting power of
the issued and outstanding capital stock of the Corporation entitled to
vote in the election of directors.
Section 7. Meetings. The Board of Directors of the Corporation
may hold meetings, both regular and special, either within or without the
State of Delaware. Regular meetings of the Board of Directors may be held
at such time and at such place as may from time to time be determined by
the Board of Directors and, unless required by resolution of the Board of
Directors, without notice. Special meetings of the Board of Directors may
be called by the Chief Executive Officer or a majority of the directors
then in office. Notice thereof stating the place, date and hour of the
meeting shall be given to each director either by mail not less than
forty-eight (48) hours before the date of the meeting, or by telephone,
facsimile or telegram on twenty-four (24) hours' notice.
Section 8. Quorum. Except as may be otherwise required by law,
the Certificate of Incorporation or these By-Laws, at all meetings of the
Board of Directors, a majority of the entire Board of Directors, shall
constitute a quorum for the transaction of business and the act of a
majority of the directors present at any meeting at which there is a
quorum shall be the act of the Board of Directors. If a quorum shall not
be present at any meeting of the Board of Directors, the directors present
thereat may adjourn the meeting from time to time, without notice other
than announcement at the meeting of the time and place of the adjourned
meeting, until a quorum shall be present.
Section 9. Actions of Board. Unless otherwise provided by the
Certificate of Incorporation or these By-Laws, any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting, if all the members of
the Board of Directors or 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 committee.
Section 10. Meetings by Means of Conference Telephone. Unless
otherwise provided by the Certificate of Incorporation or these By-Laws,
members of the Board of Directors of the Corporation, or any committee
designated by the Board of Directors, may participate in a meeting of the
Board of Directors or such committee by means of a 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 Section 10 shall constitute presence in person at
such meeting.
Section 11. Committees. The Board of Directors may, by
resolution passed by a majority of the entire Board of Directors,
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 any such
committee. In the absence or disqualification of a member of a committee,
and in the absence of a designation by the Board of Directors of an
alternate member to replace the absent or disqualified member, 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
the place of any absent or disqualified member. Any committee, to the
extent permitted by law and provided in the resolution establishing such
committee, shall have and may exercise all the powers and authority of the
Board of Directors in the management of the business and affairs of the
Corporation. Each committee shall keep regular minutes and report to the
Board of Directors when required.
Section 12. Compensation. The directors may be paid their
expenses, if any, of attendance at each meeting of the Board of Directors
and may be paid a fixed sum for attendance at each meeting of the Board of
Directors or a stated salary, or such other emoluments as the Board of
Directors shall from time to time determine. No such payment shall
preclude any director from serving the Corporation in any other capacity
and receiving compensation therefor. Members of special or standing
committees may be allowed like compensation for attending committee
meetings.
Section 13. Interested Directors. 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 such person's or their votes are counted
for such purpose if (i) the material facts as to such person's or their
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 (ii) the material facts as to such person's or their 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 (iii) 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.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be
chosen by the Board of Directors and shall be a President, a Secretary and
a Treasurer. The Board of Directors, in its discretion, may also choose a
Chairman of the Board of Directors (who must be a director) and one or
more Executive Vice Presidents, Assistant Secretaries, Assistant
Treasurers and other officers. Any number of offices may be held by the
same person, unless otherwise prohibited by law, the Certificate of
Incorporation or these By-Laws. The officers of the Corporation need not
be stockholders of the Corporation nor, except in the case of the Chairman
of the Board of Directors, need such officers be directors of the
Corporation.
Section 2. Election. The Board of Directors at its first
meeting held after each Annual Meeting of Stockholders (or action by
written consent of stockholders in lieu of the Annual Meeting of
Stockholders) shall elect the officers of the Corporation who shall hold
their offices for such terms and shall exercise such powers and perform
such duties as shall be determined from time to time by the Board of
Directors; and all officers of the Corporation shall hold office until
their successors are chosen and qualified, or until their earlier
resignation or removal. Any officer elected by the Board of Directors may
be removed at any time by the affirmative vote of a majority of the Board
of Directors. Any vacancy occurring in any office of the Corporation shall
be filled by the Board of Directors. The salaries of all officers of the
Corporation shall be fixed by the Board of Directors.
Section 3. Voting Securities Owned by the Corporation. Powers
of attorney, proxies, waivers of notice of meeting, consents and other
instruments relating to securities owned by the Corporation may be
executed in the name of and on behalf of the Corporation by the President
or any Executive Vice President and any such officer may, in the name of
and on behalf of the Corporation, take all such action as any such officer
may deem advisable to vote in person or by proxy at any meeting of
security holders of any corporation in which the Corporation may own
securities and at any such meeting shall possess and may exercise any and
all rights and power incident to the ownership of such securities and
which, as the owner thereof, the Corporation might have exercised and
possessed if present. The Board of Directors may, by resolution, from time
to time confer like powers upon any other person or persons or withdraw
such powers.
Section 4. Chairman of the Board of Directors. The Chairman of
the Board of Directors, if there be one, shall preside at all meetings of
the stockholders and of the Board of Directors. The Chairman of the Board
of Directors shall also perform such other duties and may exercise such
other powers as from time to time may be assigned to him or her by these
By-Laws or by the Board of Directors.
Section 5. President. The President shall, subject to the
control of the Board of Directors, have general supervision of the
business of the Corporation and shall see that all orders and resolutions
of the Board of Directors are carried into effect. The President shall be
the Chief Executive Officer of the Corporation. The President shall
execute all bonds, mortgages, contracts and other instruments of the
Corporation requiring a seal, under the seal of the Corporation, except
where required or permitted by law to be otherwise signed and executed and
except that the other officers of the Corporation may sign and execute
documents when so authorized by these By-Laws, the Board of Directors or
the President. In the absence or disability of the Chairman of the Board
of Directors, or if there be none, the President shall preside at all
meetings of the stockholders and the Board of Directors. The President
shall also perform such other duties and may exercise such other powers as
from time to time may be assigned to him or her by these By-Laws or by the
Board of Directors.
Section 6. Executive Vice Presidents. At the request of the
President or in his or her absence or in the event of his or her inability
or refusal to act (and if there be no Chairman of the Board of Directors),
the Executive Vice President or the Executive Vice Presidents if there is
more than one (in the order designated by the Board of Directors) shall
perform the duties of the President, and when so acting, shall have all
the powers of and be subject to all the restrictions upon the President.
Each Executive Vice President shall perform such other duties and have
such other powers as the Board of Directors from time to time may
prescribe. If there be no Chairman of the Board of Directors and no
Executive Vice President, the Board of Directors shall designate the
officer of the Corporation who, in the absence of the President or in the
event of the inability or refusal of the President to act, shall perform
the duties of the President, and when so acting, shall have all the powers
of and be subject to all the restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of
the Board of Directors and all meetings of stockholders and record all the
proceedings thereat in a book or books to be kept for that purpose; the
Secretary shall also perform like duties for the standing committees when
required.
The Secretary shall give, or cause to be given, notice of all
meetings of the stockholders and special meetings of the Board of
Directors, and shall perform such other duties as may be prescribed by the
Board of Directors or President, under whose supervision the Secretary
shall be. If the Secretary shall be unable or shall refuse to cause to be
given notice of all meetings of the stockholders and special meetings of
the Board of Directors, and if there be no Assistant Secretary, then either
the Board of Directors or the President may choose another officer to cause
such notice to be given. The Secretary shall have custody of the seal of
the Corporation and the Secretary or any Assistant Secretary, if there be
one, shall have authority to affix the same to any instrument requiring it
and when so affixed, it may be attested by the signature of the Secretary
or by the signature of any such Assistant Secretary. The Board of
Directors may give general authority to any other officer to affix the seal
of the Corporation and to attest the affixing by his or her signature. The
Secretary shall see that all books, reports, statements, certificates and
other documents and records required by law to be kept or filed are
properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of
the corporate funds and securities and shall keep full and accurate
accounts of receipts and disbursements in books belonging to the
Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be
designated by the Board of Directors. The Treasurer shall disburse the
funds of the Corporation as may be ordered by the Board of Directors,
taking proper vouchers for such disbursements, and shall render to the
President and the Board of Directors, at its regular meetings, or when the
Board of Directors so requires, an account of all transactions as
Treasurer and of the financial condition of the Corporation. If required
by the Board of Directors, the Treasurer shall give the Corporation a bond
in such sum and with such surety or sureties as shall be satisfactory to
the Board of Directors 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
the Treasurer's possession or under control of the Treasurer belonging to
the Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise
provided in these By-Laws, Assistant Secretaries, if there be any, shall
perform such duties and have such powers as from time to time may be
assigned to them by the Board of Directors, the President, any Executive
Vice President, if there be one, or the Secretary, and in the absence of
the Secretary or in the event of his or her disability or refusal to act,
shall perform the duties of the Secretary, and when so acting, shall have
all the powers of and be subject to all the restrictions upon the
Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there
be any, shall perform such duties and have such powers as from time to
time may be assigned to them by the Board of Directors, the President, any
Executive Vice President, if there be one, or the Treasurer, and in the
absence of the Treasurer or in the event of the Treasurer's disability or
refusal to act, shall perform the duties of the Treasurer, and when so
acting, shall have all the powers of and be subject to all the
restrictions upon the Treasurer. If required by the Board of Directors, an
Assistant Treasurer shall give the Corporation a bond in such sum and with
such surety or sureties as shall be satisfactory to the Board of Directors
for the faithful performance of the duties of the office of Assistant
Treasurer and for the restoration to the Corporation, in case of the
Assistant Treasurer's death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of
whatever kind in the Assistant Treasurer's possession or under control of
the Assistant Treasurer belonging to the Corporation.
Section 11. Other Officers. Such other officers as the Board
of Directors may choose shall perform such duties and have such powers as
from time to time may be assigned to them by the Board of Directors. The
Board of Directors may delegate to any other officer of the Corporation
the power to choose such other officers and to prescribe their respective
duties and powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the
Corporation shall be entitled to have a certificate signed, in the name of
the Corporation, (i) by the Chairman of the Board of Directors, the
President or an Executive Vice President and (ii) 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 holder of stock
in the Corporation.
Section 2. Signatures. Any or all of the signatures on a
certificate may be a facsimile. I n 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 such person were such officer,
transfer agent or registrar at the date of issue.
Section 3. Lost, Destroyed, Stolen or Mutilated Certificates.
The Board of Directors may direct a new certificate to be issued in place
of any certificate theretofore issued by the Corporation alleged to have
been lost, stolen or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost, stolen or
destroyed. When authorizing such issue of a new certificate, the Board of
Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed
certificate, or such person's legal representative, to advertise the same
in such manner as the Board of Directors shall require and/or to give the
Corporation a bond in such sum as it may direct as indemnity against any
claim that may be made against the Corporation with respect to the
certificate alleged to have been lost, stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall be
transferable in the manner prescribed by law and in these By-Laws.
Transfers of stock shall be made on the books of the Corporation only by
the person named in the certificate or by such person's attorney lawfully
constituted in writing and upon the surrender of the certificate therefor,
properly endorsed for transfer and payment of all necessary transfer
taxes; provided, however, that such surrender and endorsement or payment
of taxes shall not be required in any case in which the officers of the
Corporation shall determine to waive such requirement. Every certificate
exchanged, returned or surrendered to the Corporation shall be marked
"Cancelled," with the date of cancellation, by the Secretary or Assistant
Secretary of the Corporation or the transfer agent thereof. No transfer of
stock shall be valid as against the Corporation for any purpose until it
shall have been entered in the stock records of the Corporation by an
entry showing from and to whom transferred.
Section 5. Transfer and Registry Agents. The Corporation may
from time to time maintain one or more transfer offices or agencies and
registry offices or agencies at such place or places as may be determined
from time to time by the Board of Directors.
Section 6. Beneficial Owners. The Corporation shall be entitled
to recognize the exclusive right of a person registered on its books as
the owner of shares to receive dividends, and to vote as such owner, and
to hold liable for calls and assessments a person registered on its books
as the owner of shares, and shall not be bound to recognize any equitable
or other claim to or interest in such share or shares on the part of any
other person, whether or not it shall have express or other notice
thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law,
the Certificate of Incorporation or these By-Laws, to be given to any
director, member of a committee or stockholder, such notice may be given
by mail, addressed to such director, member of a committee or stockholder,
at such person's address as it appears on the records of the Corporation,
with postage thereon prepaid, and such notice shall be deemed to be given
at the time when the same shall be deposited in the United States mail.
Written notice may also be given personally or by telegram, facsimile,
telex or cable.
Section 2. Waivers of Notice.
(a) Whenever any notice is required by law, the Certificate
of Incorporation or these By-Laws, to be given to any director, member of a
committee or stockholder, a waiver thereof in writing, signed, by the
person or persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent to notice. Attendance of a
person at a meeting, present by person or represented by proxy, shall
constitute a waiver of notice of such meeting, except where 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.
(b) 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 unless so required by law, the Certificate of
Incorporation or these By-Laws.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Subject to the requirements of the GCL and
the provisions of the Certificate of Incorporation, dividends upon the
capital stock of the Corporation may be declared by the Board of Directors
at any regular or special meeting of the Board of Directors (or any action
by written consent in lieu thereof), and may be paid in cash, in property,
or in shares of the Corporation's capital stock. Before payment of any
dividend, there may be set aside out of any funds of the Corporation
available for dividends such sum or sums as the Board of Directors from
time to time, in its absolute discretion, deems proper as a reserve or
reserves to meet contingencies, or for purchasing any of the shares of
capital stock, warrants, rights, options, bonds, debentures, notes, scrip
or other securities or evidences of indebtedness of the Corporation as may
exist, or for equalizing dividends, or for repairing or maintaining any
property of the Corporation, or for any other proper purpose, and the
Board of Directors may modify or abolish any such reserve.
Section 2. Disbursements. All checks or demands for money and
notes of the Corporation shall be signed by such officer or officers or
such other person or persons as the Board of Directors may from time to
time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation
shall be fixed by resolution of the Board of Directors.
Section 4. Corporate Seal. The corporate seal shall have
inscribed thereon the name of the Corporation, the year of its
organization and the words "Corporate Seal, Delaware". The seal may be
used by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings
Other than Those by or in the Right of the Corporation. Subject to Section
3 of this Article VIII, the Corporation shall indemnify any person who was
or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right
of the Corporation) by reason of the fact that such person is or was a
director or officer of the Corporation, or is or was a director or officer
of the Corporation serving at the request of the Corporation as a director
or officer, employee or agent of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection
with such action, suit or proceeding if such person acted in good faith
and in a manner such person reasonably believed to be in or not opposed to
the best interests of the Corporation, and, with respect to any criminal
action or proceeding, such person had no reasonable cause to believe his
or her conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of
nolo contendere or its equivalent, shall not, of itself, create a
presumption that such person did not act in good faith and in a manner
which such person reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his or her conduct was
unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings
by or in the Right of the Corporation. Subject to Section 3 of this
Article VIII, the Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure
a judgment in its favor by reason of the fact that such person is or was a
director or officer of the Corporation, or is or was a director or officer
of the Corporation serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise, against
expenses (including attorneys' fees) actually and reasonably incurred by
such person in connection with the defense or settlement of such action or
suit if such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the
Corporation; except that no indemnification shall be made in respect of
any claim, issue or matter as to which such person shall have been
adjudged to be liable to the Corporation unless and only to the extent
that the Court of Chancery or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the
Court of Chancery or such other court shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification
under this Article VIII (unless ordered by a court) shall be made by the
Corporation only as authorized in the specific case upon a determination
that indemnification of the director or officer is proper in the
circumstances because such person has met the applicable standard of
conduct set forth in Section 1 or Section 2 of this Article VIII, as the
case may be. Such determination shall be made, with respect to a person
who is a director or officer at the time of such determination, (i) by a
majority vote of the directors who are not parties to such action, suit or
proceeding, even though less than a quorum, or (ii) by a committee of such
directors designated by a majority vote of such directors, even though
less than a quorum, or (iii) if there are no such directors, or if such
directors so direct, by independent legal counsel in a written opinion or
(iv) by the stockholders. Such determination shall be made, with respect
to former directors and officers, by any person or persons having the
authority to act on the matter on behalf of the Corporation. To the
extent, however, that a present or former director or officer of the
Corporation has been successful on the merits or otherwise in defense of
any action, suit or proceeding described above, or in defense of any
claim, issue or matter therein, such person shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by
such person in connection therewith, without the necessity of
authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination
under Section 3 of this Article VIII, a person shall be deemed to have
acted in good faith and in a manner such person reasonably believed to be
in or not opposed to the best interests of the Corporation, or, with
respect to any criminal action or proceeding, to have had no reasonable
cause to believe his or her conduct was unlawful, if such person's action
is based on the records or books of account of the Corporation or another
enterprise, or on information supplied to such person by the officers of
the Corporation or another enterprise in the course of their duties, or on
the advice of legal counsel for the Corporation or another enterprise or
on information or records given or reports made to the Corporation or
another enterprise by an independent certified public accountant or by an
appraiser or other expert selected with reasonable care by the Corporation
or another enterprise. The term "another enterprise" as used in this
Section 4 shall mean any other corporation or any partnership, joint
venture, trust, employee benefit plan or other enterprise of which such
person is or was serving at the request of the Corporation as a director,
officer, employee or agent. The provisions of this Section 4 shall not be
deemed to be exclusive or to limit in any way the circumstances in which a
person may be deemed to have met the applicable standard of conduct set
forth in Section 1 or 2 of this Article VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any
contrary determination in the specific case under Section 3 of this
Article VIII, and notwithstanding the absence of any determination
thereunder, any director or officer may apply to the Court of Chancery of
the State of Delaware for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII. The basis of such
indemnification by a court shall be a determination by such court that
indemnification of the director or officer is proper in the circumstances
because such person has met the applicable standards of conduct set forth
in Section 1 or 2 of this Article VIII, as the case may be. Neither a
contrary determination in the specific case under Section 3 of this
Article VIII nor the absence of any determination thereunder shall be a
defense to such application or create a presumption that the director or
officer seeking indemnification has not met any applicable standard of
conduct. Notice of any application for indemnification pursuant to this
Section 5 shall be given to the Corporation promptly upon the filing of
such application. If successful, in whole or in part, the director or
officer seeking indemnification shall also be entitled to be paid the
expense of prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a
director or officer in defending or investigating a threatened or pending
action, suit or proceeding shall be paid by the Corporation in advance of
the final disposition of such action, suit or proceeding upon receipt of
an undertaking by or on behalf of such director or officer to repay such
amount if it shall ultimately be determined that such person is not
entitled to be indemnified by the Corporation as authorized in this
Article VIII.
Section 7. Nonexclusivity of Indemnification and Advancement of
Expenses. The indemnification and advancement of expenses provided by or
granted pursuant to this Article VIII shall not be deemed exclusive of any
other rights to which those seeking indemnification or advancement of
expenses may be entitled under the Certificate of Incorporation or any By-
Law, agreement, contract, vote of stockholders or disinterested directors
or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in such person's
official capacity and as to action in another capacity while holding such
office, it being the policy of the Corporation that indemnification of the
persons specified in Section 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII
shall not be deemed to preclude the indemnification of any person who is
not specified in Section 1 or 2 of this Article VIII but whom the
Corporation has the power or obligation to indemnify under the provisions
of the GCL, or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a director or officer of
the Corporation, or is or was a director or officer of the Corporation
serving at the request of the Corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise against any liability asserted
against such person and incurred by such person in any such capacity, or
arising out of such person's status as such, whether or not the
Corporation would have the power or the obligation to indemnify such
person against such liability under the provisions of this Article VIII.
Section 9. Certain Definitions. For purposes of this Article
VIII, references to "the Corporation" shall include, in addition to the
resulting corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or merger which,
if its separate existence had continued, would have had power and
authority to indemnify its directors or officers, so that any person who
is or was a director or officer of such constituent corporation, or is or
was a director or officer of such constituent corporation serving at the
request of such constituent corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise, shall stand in the same
position under the provisions of this Article VIII 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.
For purposes of this Article VIII, references to "fines" shall include any
excise taxes assessed on a person with respect to an employee benefit
plan; and references to "serving at the request of the Corporation" shall
include any service as a director, officer, employee or agent of the
Corporation which imposes duties on, or involves services by, such
director or officer with respect to an employee benefit plan, its
participants or beneficiaries; and a person who acted in good faith and in
a manner such person reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be deemed
to have acted in a manner "not opposed to the best interests of the
Corporation" as referred to in this Article VIII.
Section 10. Survival of Indemnification and Advancement of
Expenses. The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article VIII shall, unless otherwise provided
when authorized or ratified, continue as to a person who has ceased to be
a director or officer and shall inure to the benefit of the heirs,
executors and administrators of such a person.
Section 11. Limitation on Indemnification. Notwithstanding
anything contained in this Article VIII to the contrary, except for
proceedings to enforce rights to indemnification (which shall be governed
by Section 5 hereof), the Corporation shall not be obligated to indemnify
any director or officer (or his or her heirs, executors or personal or
legal representatives) or advance expenses in connection with a proceeding
(or part thereof) initiated by such person unless such proceeding (or part
thereof) was authorized or consented to by the Board of Directors of the
Corporation.
Section 12. Indemnification of Employees and Agents. The
Corporation may, to the extent authorized from time to time by the Board
of Directors, provide rights to indemnification and to the advancement of
expenses to employees and agents of the Corporation similar to those
conferred in this Article VIII to directors and officers of the
Corporation.
ARTICLE IX
AMENDMENTS
Section 1. A mendments. These By-Laws may be altered, amended or
repealed, in whole or in part, or new By-Laws may be adopted by the
stockholders or by the Board of Directors, provided, however, that notice
of such alteration, amendment, repeal or adoption of new By-Laws be
contained in the notice of such meeting of stockholders or Board of
Directors as the case may be. All such amendments must be approved by
either the holders of a majority of the outstanding capital stock entitled
to vote thereon or by a majority of the entire Board of Directors.
Section 2. Entire Board of Directors. As used in this Article IX
and in these By-Laws generally, the term "entire Board of Directors" means
the total number of directors which the Corporation would have if there
were no vacancies.
* * *
Adopted as of: November 17, 1999