AMENDED AND RESTATED
BY-LAWS
OF
RARE MEDIUM GROUP, INC.
(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.
Section 2. Annual Meetings. The Annual Meetings of
Stockholders for the election of directors shall be held on such date and
at such time as shall be designated from time to time by the Board of
Directors. Any other proper business may be transacted at the Annual
Meeting of Stockholders.
Section 3. Special Meetings. Unless otherwise required 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
either (i) the Chairman, if there be one, (ii) the Chief Executive Officer,
if there be one, or (iii) the President, (iv) any Vice President, if there
be one, (v) the Secretary or (vi) any Assistant Secretary, if there be one,
and shall be called by any such officer at the request in writing of (i)
the Board of Directors, (ii) a committee of the Board of Directors that has
been duly designated by the Board of Directors and whose powers and
authority include the power to call such meetings or (iii) stockholders
owning a majority of the capital stock of the Corporation issued and
outstanding and entitled to vote. Such request shall state the purpose or
purposes of the proposed meeting. At a Special Meeting of Stockholders,
only such business shall be conducted as shall be specified in the notice
of meeting (or any supplement thereto).
Section 4. Notice. Whenever stockholders are required or
permitted to take any action at a meeting, a written notice of the meeting
shall be given which 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 required by law, the written
notice of any meeting 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 5. Adjournments. Any meeting of the stockholders may
be adjourned 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 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 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 6. Quorum. Unless otherwise required by law or 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, in the manner provided in
Section 5, until a quorum shall be present or represented.
Section 7. Voting. Unless otherwise required by law, the
Certificate of Incorporation or these By-laws, any question brought before
any meeting of stockholders, other than the election of directors, shall be
decided by the vote of the holders of a majority of the total number of
votes of the capital stock represented and entitled to vote thereat, voting
as a single class. Unless otherwise provided in the Certificate of
Incorporation, and subject to Section 5 of Article V hereof, each
stockholder represented at a meeting of stockholders shall be entitled to
cast one vote for each share of the capital stock entitled to vote thereat
held by such stockholder. Such votes may be cast in person or by proxy but
no proxy shall be voted on or after three years from its date, unless such
proxy provides for a longer period. The Board of Directors, in its
discretion, or the officer of the Corporation presiding at a meeting of
stockholders, in such officer's discretion, may require that any votes cast
at such meeting shall be cast by written ballot.
Section 8. Consent of Stockholders in Lieu of Meeting. Unless
otherwise provided in the Certificate of Incorporation, any action required
or permitted to be taken at any Annual or Special Meeting of Stockholders
of the Corporation, may be taken without a meeting, without prior notice
and without a vote, if a consent or consents in writing, setting forth the
action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all shares entitled to
vote thereon were present and voted and shall be 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 the Corporation's registered office shall
be by hand or by certified or registered mail, return receipt requested.
Every written consent shall bear the date of signature of each stockholder
who signs the consent and no written consent shall be effective to take the
corporate action referred to therein unless, within sixty days of the
earliest dated consent delivered in the manner required by this Section 8
to the Corporation, written consents signed by a sufficient number of
holders to take action are 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. Prompt
notice of the taking of the corporate action without a meeting by less than
unanimous written consent shall be given to those stockholders who have not
consented in writing and who, if the action had been taken at a meeting,
would have been entitled to notice of the meeting if the record date for
such meeting had been the date that written consents signed by a sufficient
number of holders to take the action were delivered to the Corporation as
provided above in this section.
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. 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 fifteen members,
the exact number of which shall initially be fixed by the Incorporator and
thereafter from time to time by the Board of Directors. Directors shall be
elected by a plurality of the votes cast at the Annual Meetings of
Stockholders (or any Special Meeting of Stockholders called for the
purpose) 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. Vacancies. Unless otherwise required by law or the
Certificate of Incorporation, vacancies arising through death, resignation,
removal, an increase in the number of directors or otherwise may be filled
only by a majority of the directors then in office, though less than a
quorum, or by a sole remaining director, and the directors so chosen shall
hold office until the next annual election and until their successors are
duly elected and qualified, or until their earlier death, resignation or
removal.
Section 3. Duties and Powers. The business and affairs 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 4. Meetings. The Board of Directors 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 without notice at
such time and at such place as may from time to time be determined by the
Board of Directors. Special meetings of the Board of Directors may be
called by the Chairman, if there be one, the President, or by any director.
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, by telephone or telegram on twenty-four
(24) hours' notice, or on such shorter notice as the person or persons
calling such meeting may deem necessary or appropriate in the
circumstances.
Section 5. Quorum. Except as otherwise required by law or the
Certificate of Incorporation, 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 6. Actions by Written Consent. Unless otherwise
provided in 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 7. Meetings by Means of Conference Telephone. Unless
otherwise provided in the Certificate of Incorporation, members of the
Board of Directors of the Corporation, or any committee thereof, 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 6 shall
constitute presence in person at such meeting.
Section 8. 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 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
such member or members 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, and may
authorize the seal of the Corporation to be affixed to all papers which may
require it. Each committee shall keep regular minutes and report to the
Board of Directors when required.
Section 9. 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 as director, payable in cash or securities.
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 10. 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 the director or officer's vote is counted
for such purpose if (i) the material facts as to the director or officer's
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 the director or officer's 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, also may choose a
Chairman of the Board of Directors (who must be a director), a Chief
Executive Officer, and one or more 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 or the Certificate
of Incorporation. 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 death,
resignation or removal. Any officer elected by the Board of Directors may
be removed at any time by the affirmative vote 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
Vice President or any other officer authorized to do so by the Board of
Directors 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.
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. Except where by law the
signature of the President is required, the Chairman of the Board of
Directors shall possess the same power as the President to sign all
contracts, certificates and other instruments of the Corporation which may
be authorized by the Board of Directors. During the absence or disability
of the Chief Executive Officer, or if there be none, the Chairman of the
Board of Directors shall exercise all the powers and discharge all the
duties of the Chief Executive Officer. The Chairman of the Board of
Directors shall also perform such other duties and may exercise such other
powers as may from time to time be assigned by these By-Laws or by the
Board of Directors.
Section 5. Chief Executive Officer. The Chief Executive
Officer shall, if there be one, subject to the control of the Board of
Directors and, if there be one, the Chairman 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. Except where by law the signature of the President is required,
the Chief Executive Officer shall possess the same power as the President
to sign all contracts, certificates and other instruments of the
Corporation which may be authorized by the Board of Directors. In the
absence or disability of the Chairman of the Board of Directors, or if
there be none, the Chief Executive Officer shall preside at all meetings of
the stockholders and the Board of Directors. During the absence or
disability of the President, the Chief Executive Officer shall exercise all
the powers and discharge all the duties of the President. The Chief
Executive Officer shall also perform such other duties and may exercise
such other powers as may from time to time be assigned to such officer by
these By-Laws or by the Board of Directors.
Section 6. President. 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, the Chief Executive
Officer or the President. In the absence or disability of the Chairman of
the Board of Directors and the Chief Executive Officer, or if there be no
Chairman of the Board of Directors and no Chief Executive Officer, the
President shall, subject to the control of the Board of Directors, exercise
all the powers and discharge all the duties of the Chairman of the Board of
Directors and the Chief Executive Officer. The President shall also
perform such other duties and may exercise such other powers as may from
time to time be assigned to such officer by these By-Laws or by the Board
of Directors.
Section 7. Vice Presidents. At the request of the President or
in the President's absence or in the event of the President's inability or
refusal to act (and if there be no Chairman of the Board of Directors and
no Chief Executive Officer), the Vice President, or the 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 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, no Chief
Executive Officer and no 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 8. 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 committees of the Board of
Directors 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, the Chairman of the Board of
Directors, the Chief Executive Officer or the 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 the Board of Directors, the Chief Executive
Officer 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 to the affixing by such officer's 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 9. 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
the 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 the Treasurer's control belonging to the
Corporation.
Section 10. Assistant Secretaries. 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 Chief
Executive Officer, the President, any Vice President, if there be one, or
the Secretary, and in the absence of the Secretary or in the event of the
Secretary's 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 11. 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 Chief
Executive Officer, the President, any 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 the
Assistant Treasurer's control belonging to the Corporation.
Section 12. 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 a 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 stockholder in the
Corporation.
Section 2. Signatures. Any or all of the signatures on a
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 such person were such officer,
transfer agent or registrar at the date of issue.
Section 3. Lost 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 the
owner'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 or the issuance of such new certificate.
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,
which shall be cancelled before a new certificate shall be issued. 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. 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, 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 sixty nor less than ten days before the date of such
meeting. If no record date is fixed by the Board of Directors, 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. 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; providing, 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 this State, 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.
(c) In order that the Corporation may determine the stockholders
entitled to receive payment of any dividend or other distribution or
allotment of any rights or the stockholders 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, and which record date shall
be not more than sixty days prior to such action. If no record date is
fixed, the record date for determining stockholders for any such purpose
shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto.
Section 6. Record 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 required 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 facsimile, telegram, telex or
cable.
Section 2. Waivers of Notice. 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
thereto. Attendance of a person at a meeting, present in 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.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the
Corporation, subject to the requirements of the General Corporation Law of
the State of Delaware and the provisions of the Certificate of
Incorporation, if any, 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 in accordance with Section 6 of Article III
hereof), 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 equalizing dividends, or for repairing or maintaining any property of
the Corporation, or for any 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. In the absence of
such a resolution, the fiscal year of the Corporation shall end on December
31.
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. Definitions. Certain terms used in this Article
VIII shall be defined as follows or, where so indicated, shall include the
following meanings in addition to their normal and their statutory
meanings.
"Authorized Representative" shall mean a director or officer,
employee or agent of the Corporation, acting solely in such capacity, or a
person serving at the request of the Corporation as a director, officer,
partner, trustee, employee or agent of another corporation, partnership,
joint venture, trust, committee or other enterprise 50% or more of whose
voting stock or equitable interest shall be owned by this Corporation.
"Criminal Third Party Proceeding" shall include any Third Party
Proceedings involving potential criminal liability.
"Derivative Action" shall mean any threatened, pending or completed
action or suit by the Corporation to produce a judgment in favor of its
shareholders, or any threatened, pending or completed action or suit in the
right of the Corporation by its shareholders to procure a judgment in favor
of the Corporation.
"Disinterested Directors" shall include directors of the
Corporation who are not parties or have no economic or other collateral
personal benefit relating to a Third Party Proceeding or Derivative Action.
"Party" shall include any person who is required to give testimony
or becomes similarly involved, whether or not named in the action as a
party thereto.
"Third Party Proceeding" shall mean any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative, quasi-administrative or investigative, other than an action
by or in the right of the Corporation.
Section 2. Directors and Officers -- Third Party Proceedings.
The Corporation shall indemnify any director and any officer of the
Corporation who was or is a party or is threatened to be made a party to
any Third Party Proceeding by reason of the fact that he or she was or is
an Authorized Representative of the Corporation against his or her expenses
and liabilities (including attorneys' fees), actually and reasonably
incurred by him or her in connection with the Third Party Proceeding if he
or she acted in good faith and in a manner reasonably believed by him or
her to be in, or not opposed to, the best interests of the Corporation and,
with respect to any Criminal Third Party Proceeding, had no reasonable
cause to believe his or her conduct was unlawful or in violation of
applicable rules. The termination of any Third Party Proceeding by
judgment, order, settlement, consent filing of a criminal complaint or
information, indictment, conviction or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person
did not act in good faith and in a manner which he or she reasonably
believed to be in, or not opposed to, the best interests of the Corporation
or, with respect to any Criminal Third Party Proceeding, had reasonable
cause to believe that his or her conduct was unlawful.
Section 3. Directors and Officers -- Derivative Actions. The
Corporation shall indemnify any director or officer of the Corporation who
was or is a party or is threatened to be made a party to any Derivative
Action by reason of the fact that the director or officer was or is an
Authorized Representative of the Corporation, against his or her expenses
(including attorneys' fees) actually and reasonably incurred by the
director or officer in the action if he or she acted in good faith and in a
manner reasonably believed by him or her 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 he or she shall
have been adjudged to be liable for negligence or misconduct in the
performance of his or her duty to the Corporation unless and only to the
extent that the court of common pleas, or other similarly constituted state
court, located in the county where the registered office of the Corporation
is located or the court in which such Derivative Action is or was pending,
shall determine upon application that, despite the adjudication of
liability but in view of all circumstances of the case, he or she is fairly
and reasonably entitled to indemnity for expenses which the court shall
deem proper.
Section 4. Authorized Representatives Not Directors or
Officers. An Authorized Representative of the Corporation other than a
director or officer of the Corporation may be indemnified by the
Corporation or have his or her expenses advanced in accordance with the
procedures set forth in Sections 2, 3, 5, 6 and 7 of this Article VIII. To
the extent that an Authorized Representative of the Corporation has been
successful on the merits or otherwise in defense of any Third Party
Proceeding or Derivative Action or in defense of any claim, issue or matter
therein, the Authorized Representative shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by
him or her in connection therewith.
Section 5. Procedure for Effecting Indemnification.
Indemnification under Sections 2, 3 or 4 of this Article VIII (unless
ordered by a court, in which case the expenses, including attorneys' fees
of the Authorized Representative in enforcing indemnification shall be
added to and included in the final judgment against the Corporation) shall
be made by the Corporation only as authorized in the specific case upon a
determination that the indemnification of the Authorized Representative is
required or proper in the circumstances because he or she has met the
applicable standard of conduct set forth in Sections 2 or 3 of this Article
VIII or has been successful on the merits or as otherwise set forth in
Section 4 of this Article and that the amount requested has been actually
and reasonably incurred. Such determination shall be made: (i) by the
Board of Directors or a committee thereof, acting by a majority vote of a
quorum consisting of Disinterested Directors; or (ii) if a quorum is not
obtainable or, even if obtainable, a majority vote of a quorum of
Disinterested Directors so directs, by independent legal counsel in a
written opinion.
Section 6. Independent Legal Counsel. Independent legal
counsel may be appointed by the Board of Directors, even if a quorum of
Disinterested Directors is not available, or by persons designated by the
Board of Directors. Independent legal counsel shall not include any
employee of the Corporation or any person who has been or is a member or
employee of any firm which has rendered services for a fee to the
Corporation during the one year immediately preceding the appointment. If
independent legal counsel shall determine in a written opinion that
indemnification is proper under this Article, indemnification shall be made
without further action of the Board of Directors.
Section 7. Advancing Expenses. Expenses incurred in defending
a Third Party Proceeding or Derivative Action shall be paid on behalf of a
director or officer, and may be paid on behalf of any Authorized
Representative, by the Corporation in advance of the final disposition of
the action as authorized in the manner provided by Section 5 of this
Article VIII (except that the person(s) making the determination thereunder
need not make a determination on whether the applicable standard of conduct
has been met unless a judicial determination has been made with respect
thereto, or the person seeking indemnification has conceded that he or she
has not met such standard) upon receipt of an undertaking by or on behalf
of the Authorized Representative to repay the amount to be advanced unless
it shall ultimately be determined that the Authorized Representative is
entitled to be indemnified by the Corporation as required in this Article
or authorized by law. The financial ability of any Authorized
Representative to make repayment shall not be a prerequisite to making of
an advance.
Section 8. Conditions. The Corporation may impose reasonable
restrictions upon any persons seeking indemnification (including advanced
expenses) under this Article including, but not limited to, a condition to
the effect that, except to the extent differing interests compel another
result, persons to be indemnified under this paragraph may be required to
share the same counsel and other services.
Section 9. Insurance. The Corporation shall have the power to
purchase and maintain insurance on behalf of any person who is or was an
Authorized Representative against any expenses and liabilities asserted
against him or her and incurred by him or her in any such capacity, whether
or not the Corporation would have the power to indemnify him or her against
such expenses and liabilities under the provisions of this Article.
Section 10. Scope of Article. Each person who shall act as an
Authorized Representative of the Corporation shall be deemed to be doing so
in reliance upon the rights of indemnification provided in this Article.
The indemnification provided by this Article shall not be deemed
exclusive of any other right to which a person seeking indemnification may
be entitled under any statute, agreement, vote of Disinterested Directors,
or otherwise, regardless of whether the event giving rise to
indemnification occurred before or after the effectiveness thereof, both as
to action taken in another capacity while holding his or her office or
position, and shall continue as to a person who has ceased to be an
Authorized Representative of the Corporation and shall inure to the benefit
of his or her heirs and personal representatives.
ARTICLE IX
AMENDMENTS
Section 1. Amendments. 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 then in
office.
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: