Exhibit 3.1
CONFORMED COPY
OF
McLEODUSA INCORPORATED
SECOND AMENDED AND RESTATED BYLAWS,
AS AMENDED
Adopted
as of
April 12, 2002,
as amended
through
September 13, 2002
TABLE OF CONTENTS
1 OFFICES.............................................................................5
1.1 REGISTERED OFFICE.................................................5
1.2 OTHER OFFICES.....................................................5
2 MEETINGS OF STOCKHOLDERS............................................................5
2.1 PLACE OF MEETINGS.................................................5
2.2 ANNUAL MEETINGS...................................................5
2.3 SPECIAL MEETINGS..................................................5
2.4 NOTICE OF MEETINGS................................................6
2.5 WAIVERS OF NOTICE.................................................6
2.6 NATURE OF BUSINESS AT MEETINGS....................................6
2.6.1 ANNUAL MEETINGS..........................................6
2.6.2 SPECIAL MEETINGS.........................................7
2.7 ADJOURNMENTS......................................................7
2.8 LIST OF STOCKHOLDERS..............................................7
2.9 QUORUM AT MEETINGS................................................8
2.10 VOTING AND PROXIES................................................8
2.11 CONDUCT OF MEETINGS...............................................9
3 DIRECTORS...........................................................................9
3.1 POWERS............................................................9
3.2 NUMBER AND ELECTION...............................................9
3.3 CLASSIFIED BOARD.................................................10
3.4 NOMINATION OF DIRECTORS..........................................10
3.5 VACANCIES........................................................12
3.6 MEETINGS.........................................................12
3.6.1 REGULAR MEETINGS........................................12
3.6.2 SPECIAL MEETINGS........................................12
3.6.3 TELEPHONE MEETINGS......................................12
3.6.4 ACTION WITHOUT MEETING..................................12
3.6.5 WAIVER OF NOTICE OF MEETING.............................13
3.7 QUORUM AND VOTE AT MEETINGS......................................13
3.8 COMMITTEES OF DIRECTORS..........................................13
3.8.1 EXECUTIVE COMMITTEE.....................................13
3.9 COMPENSATION OF DIRECTORS........................................14
3.10 INTERESTED DIRECTORS.............................................14
4 OFFICERS...........................................................................14
4.1 POSITIONS........................................................14
4.2 CHAIRPERSON......................................................15
4.3 CHIEF EXECUTIVE OFFICER..........................................15
4.4 CHIEF OPERATING OFFICER..........................................15
4.5 CHIEF FINANCIAL OFFICER..........................................16
4.6 PRESIDENT........................................................16
4.7 VICE PRESIDENT...................................................16
4.8 SECRETARY........................................................16
4.9 ASSISTANT SECRETARY..............................................16
4.10 TREASURER........................................................17
4.11 ASSISTANT TREASURER..............................................17
4.12 TERM OF OFFICE...................................................17
4.13 COMPENSATION.....................................................17
4.14 FIDELITY BONDS...................................................17
5 CAPITAL STOCK......................................................................17
5.1 CERTIFICATES OF STOCK; UNCERTIFICATED SHARES.....................18
5.2 LOST CERTIFICATES................................................18
5.3 RECORD DATE......................................................18
5.3.1 ACTIONS BY STOCKHOLDERS.................................18
5.3.2 PAYMENTS................................................19
5.4 STOCKHOLDERS OF RECORD...........................................19
6 INDEMNIFICATION....................................................................19
6.1 POWER TO INDEMNIFY IN ACTIONS, SUITS OR PROCEEDINGS
OTHER THAN THOSE BY OR IN THE RIGHT OF THE CORPORATION...........20
6.2 POWER TO INDEMNIFY IN ACTIONS, SUITS OR PROCEEDINGS
BY OR IN THE RIGHT OF THE CORPORATION............................20
6.3 AUTHORIZATION OF INDEMNIFICATION.................................20
6.4 GOOD FAITH DEFINED...............................................21
6.5 INDEMNIFICATION BY A COURT.......................................21
6.6 EXPENSES PAYABLE IN ADVANCE......................................22
6.7 NONEXCLUSIVITY OF INDEMNIFICATION AND
ADVANCEMENT OF EXPENSES..........................................22
6.8 INSURANCE........................................................22
6.9 CERTAIN DEFINITIONS..............................................23
6.10 SURVIVAL OF INDEMNIFICATION AND ADVANCEMENT OF EXPENSES..........23
6.11 LIMITATION ON INDEMNIFICATION....................................23
6.12 INDEMNIFICATION OF EMPLOYEES AND AGENTS..........................23
6.13 REPEAL OR MODIFICATION...........................................24
6.14 SEVERABILITY.....................................................24
7 GENERAL PROVISIONS.................................................................24
7.1 INSPECTION OF BOOKS AND RECORDS..................................24
7.2 DIVIDENDS........................................................24
7.3 RESERVES.........................................................25
7.4 EXECUTION OF INSTRUMENTS.........................................25
7.5 FISCAL YEAR......................................................25
7.6 SEAL.............................................................25
SECOND AMENDED AND RESTATED BYLAWS
OF
McLEODUSA INCORPORATED
1 OFFICES
1.1 REGISTERED OFFICE
The registered office of the Corporation shall be located at
1209 Orange Street, Wilmington, Delaware, 19801 in the County of New Castle.
The registered agent of the Corporation at such address shall be The
Corporation Trust Company.
1.2 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 or as may be necessary or useful in connection
with the business of the Corporation.
2 MEETINGS OF STOCKHOLDERS
2.1 PLACE OF MEETINGS
All meetings of the stockholders shall be held at such place
as may be fixed from time to time by the Board of Directors, the Chairperson,
the Chief Executive Officer or the President.
2.2 ANNUAL MEETINGS
The Corporation shall hold annual meetings of stockholders
on such date and at such time as shall be designated from time to time by the
Board of Directors, the Chairperson, the Chief Executive Officer or the
President, at which stockholders shall elect a Board of Directors and transact
such other business as may properly be brought before the meeting.
2.3 SPECIAL MEETINGS
Unless otherwise required by law or by the certificate of
incorporation of the Corporation (including any certificate of designation),
as amended and restated from time to time (the "Certificate of
Incorporation"), special meetings of the stockholders, for any purpose or
purposes, may be called by the Board of Directors, the Chairperson, the Chief
Executive Officer or the President. The ability of the stockholders to call a
special meeting of stockholders is hereby specifically denied.
2.4 NOTICE OF MEETINGS
Notice of any meeting of stockholders, stating the place,
date and hour of the meeting, and (if it is a special meeting) the purpose or
purposes for which the meeting is called, 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 (except to the extent that such notice is
waived or is not required as provided in the General Corporation Law of the
State of Delaware (the "Delaware General Corporation Law") or these Bylaws).
Such notice shall be given in accordance with, and shall be deemed effective
as set forth in, Section 222 (or any successor section) of the Delaware
General Corporation Law.
2.5 WAIVERS OF NOTICE
Whenever the giving of any notice is required by statute,
the Certificate of Incorporation or these Bylaws, a waiver thereof, in writing
and delivered to the Corporation, signed by the person or persons entitled to
said notice, whether before or after the event as to which such notice is
required, shall be deemed equivalent to notice. Attendance of a stockholder at
a meeting shall constitute a waiver of notice (1) of such meeting, except when
the stockholder at the beginning of the meeting objects to holding the meeting
or transacting business at the meeting, and (2) (if it is a special meeting)
of consideration of a particular matter at the meeting that is not within the
purpose or purposes described in the meeting notice, unless the stockholder
objects to considering the matter at the beginning of the meeting.
2.6 NATURE OF BUSINESS AT MEETINGS
2.6.1 ANNUAL MEETINGS
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
Corporation (i) who is a stockholder of record on the date of the giving of
the notice provided for in this Section 2.6.1 and on the record date for the
determination of stockholders entitled to vote at such annual meeting and (ii)
who complies with the notice procedures set forth in this Section 2.6.1.
In addition to any other applicable requirements, for
business to be properly brought before an annual meeting by a stockholder,
such stockholder must have given timely notice thereof in proper written form
to the Secretary of the Corporation.
To be timely, a stockholder's notice to the Secretary must
be delivered to or mailed and received at the principal executive offices of
the Corporation not less than sixty (60) days nor more than ninety (90) days
prior to the anniversary date of the immediately preceding annual meeting
of stockholders; provided, however, that in the event that the annual meeting
is called for a date that is not within thirty (30) days before or after such
anniversary date, notice by the stockholder in order to be timely must be so
received not later than the close of business on the tenth (10th) day
following the day on which such notice of the date of the annual meeting was
mailed or such public disclosure of the date of the annual meeting was made,
whichever first occurs.
To be in proper written form, a stockholder's notice to the
Secretary must set forth as to each matter such stockholder proposes to bring
before the annual meeting (i) a brief description of the business desired to
be brought before the annual meeting and the reasons for conducting such
business at the annual meeting, (ii) the name and record address of such
stockholder, (iii) the class or series and number of shares of capital stock
of the Corporation which are owned beneficially or of record by such
stockholder, (iv) a description of all arrangements or understandings between
such stockholder and any other person or persons (including their names) in
connection with the proposal of such business by such stockholder and any
material interest of such stockholder in such business and (v) a
representation that such stockholder intends to appear in person or by proxy
at the annual meeting to bring such business before the meeting.
No business shall be conducted at the annual meeting of
stockholders except business brought before the annual meeting in accordance
with the procedures set forth in this Section 2.6.1; provided, however, that,
once business has been properly brought before the annual meeting in
accordance with such procedures, nothing in this Section 2.6.1 shall be deemed
to preclude discussion by any stockholder of any such business. If the
Chairperson of an annual meeting determines that business was not properly
brought before the annual meeting in accordance with the foregoing procedures,
the Chairperson shall declare to the meeting that the business was not
properly brought before the meeting and such business shall not be transacted.
2.6.2 SPECIAL MEETINGS
Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice (except to the extent
that such notice is waived or is not required as provided in the Delaware
General Corporation Law or these Bylaws).
2.7 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.
2.8 LIST OF STOCKHOLDERS
After the record date for a meeting of stockholders has been
fixed, at least ten days before such meeting, the officer who has charge of
the stock ledger of the Corporation shall make a list of all 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 in the city where the meeting is to be held, which place is to be
specified in the notice of the meeting, or at the place where the meeting is
to be held. Such list shall also, for the duration of the meeting, be produced
and kept open to the examination of any stockholder who is present at the time
and place of the meeting.
2.9 QUORUM AT MEETINGS
Stockholders may take action on a matter at a meeting only
if a quorum exists with respect to that matter. Except as otherwise provided
by statute or by the Certificate of Incorporation, the holders of a majority
of the voting rights represented by the shares issued and outstanding and
entitled to vote at the meeting, and who are present in person or represented
by proxy, shall constitute a quorum at all meetings of the stockholders for
the transaction of business. Except as otherwise provided by statute or by the
Certificate of Incorporation, where a separate vote by a class or classes is
required, a majority of the outstanding shares of such class or classes,
present in person or represented by proxy, shall constitute a quorum entitled
to take action with respect to that vote on that matter. Once a share is
represented for any purpose at a meeting (other than solely to object (1) to
holding the meeting or transacting business at the meeting, or (2) (if it is a
special meeting) to consideration of a particular matter at the meeting that
is not within the purpose or purposes described in the meeting notice), it is
deemed present for quorum purposes for the remainder of the meeting and for
any adjournment of that meeting unless a new record date is or must be set for
the adjourned meeting. The holders of a majority of the voting rights
represented by the shares represented at a meeting, whether or not a quorum is
present, may adjourn such meeting from time to time.
2.10 VOTING AND PROXIES
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 5.3, 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.
2.11 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.
3 DIRECTORS
3.1 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, subject
to any limitation set forth in the Certificate of Incorporation or as
otherwise may be provided in the Delaware General Corporation Law.
3.2 NUMBER AND ELECTION
The number of directors which shall constitute the whole
Board of Directors shall consist of not less than seven (7) nor more than
sixteen (16), the exact number of which shall be fixed from time to time by
resolution of the Board of Directors. The Board of Directors shall have as
members at least (a) five (5) Independent Directors, (b) three officers of the
Corporation selected by the Board; provided that each such officer shall hold
one or more of the following titles: Chairperson; Chief Executive Officer;
President; Chief Operating Officer or Chief Financial Officer (such three
officers, the "Officers"), (c) the designee of the Corporation's Series A
Preferred Stock, if any, and (d) the designee(s) of the Corporation's Series B
Preferred Stock, if any.
For the purposes of these Bylaws, the term "Independent
Director" means any person:
(A) who is not, and has not been for the past five years,
employed by the Corporation or any of its affiliates;
(B) who is not, and has not been for the past five years, a
consultant, employee, officer, director, partner or
"affiliate" (as such term is defined in Section 12b-2 of
General Rule and Regulations under the Exchange Act or any
successor provision) of any person (or any person that is
the member of a group) that is the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act) of 10% or more
of the Corpora tion's outstanding voting securities; and
(C) who is not a member of the immediate family of an individual
who is a person described in A or B above. "Immediate
family" includes a person's spouse, parents, children,
siblings, mother-in-law, father-in-law, brother-in-law,
sister-in-law, son-in-law, daughter-in-law, and anyone who
resides in such person's home.
Any amendment by the Board of Directors to the provisions of this
Section 3.2 relating to (1) the number of Independent Directors on the Board
of Directors or (2) the definition of the term "Independent Director" shall
require the approval of a majority of the Independent Directors then in office.
3.3 CLASSIFIED BOARD
The directors shall be divided into three classes,
designated Class I, Class II and Class III. Each class shall consist, as
nearly as may be possible, of one-third of the total number of directors
constituting the entire Board of Directors. Unless otherwise provided in the
Certificate of Incorporation, the initial division of the Board of Directors
into classes shall be made by the decision of the affirmative vote of a
majority of the entire Board of Directors. The term of the initial Class I
directors shall terminate on the date of the 2002 annual meeting; the term of
the initial Class II directors shall terminate on the date of the 2003 annual
meeting; and the term of the initial Class III directors shall terminate on
the date of the 2004 annual meeting. At each succeeding annual meeting of
stockholders beginning in 2002, successors to the class of directors whose
term expires at that annual meeting shall be elected for a three-year term. If
the number of directors is changed, any increase or decrease shall be
apportioned among the classes so as to maintain the number of directors in
each class as nearly equal as possible, and any additional director of any
class elected to fill a vacancy resulting from an increase in such class shall
hold office for a term that shall coincide with the remaining term of that
class, but in no case will a decrease in the number of directors shorten the
term of any incumbent director.
3.4 NOMINATION OF DIRECTORS
Only persons who are nominated in accordance with the
following procedures shall be eligible for election as directors of the
Corporation, 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 Corporation (i) who is a stockholder of
record on the date of the giving of the notice provided for in this Section
3.4 and on the record date for the determination of stockholders entitled to
vote at such meeting and (ii) who complies with the notice procedures set
forth in this Section 3.4.
In addition to any other applicable requirements, for a
nomination to be made by a stockholder, such stockholder must have given
timely notice thereof in proper written form to the Secretary of the
Corporation.
To be timely, a stockholder's notice to the Secretary must
be delivered to or mailed and received at the principal executive offices of
the Corporation (a) in the case of an annual meeting, not less than sixty (60)
days nor more than ninety (90) days prior to the anniversary date of the
immediately preceding annual meeting of stockholders; provided, however, that
in the event that the annual meeting is called for a date that is not within
thirty (30) days before or after such anniversary date, notice by the
stockholder in order to be timely must be so received not later than the close
of business on the tenth (10th) day following the day on which such notice of
the date of the annual meeting was mailed or such public disclosure of the
date of the annual meeting was made, whichever first occurs; and (b) in the
case of a special meeting of stockholders called for the purpose of electing
directors, not later than the close of business on the tenth (10th) day
following the day on which notice of the date of the special meeting was
mailed or public disclosure of the date of the special meeting was made,
whichever first occurs.
To be in proper written form, a stockholder's notice to the
Secretary must set forth (a) as to each person whom the stockholder proposes
to nominate for election as a director (i) the name, age, business address and
residence address of the person, (ii) the principal occupation or employment
of the person, (iii) the class or series and number of shares of capital stock
of the Corporation which are owned beneficially or of record by the person and
(iv) any other information relating to the person that would be required to be
disclosed in a proxy statement or other filings required to be made in
connection with solicitations of proxies for election of directors pursuant to
Section 14 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the rules and regulations promulgated thereunder; and (b) as to the
stockholder giving the notice (i) the name and record address of such
stockholder, (ii) the class or series and number of shares of capital stock of
the Corporation which are owned beneficially or of record by such stockholder,
(iii) a description of all arrangements or understandings between such
stockholder and each proposed nominee and any other person or persons
(including their names) pursuant to which the nomination(s) are to be made by
such stockholder, (iv) a representation that such stockholder intends to
appear in person or by proxy at the meeting to nominate the persons named in
its notice and (v) any other information relating to such stockholder that
would be required to be disclosed in a proxy statement or other filings
required to be made in connection with solicitations of proxies for election
of directors pursuant to Section 14 of the Exchange Act and the rules and
regulations promulgated thereunder. Such notice must be accompanied by a
written consent of each proposed nominee to being named as a nominee and to
serve as a director if elected.
No person shall be eligible for election as a director of
the Corporation unless nominated in accordance with the procedures set forth
in this Section 3.4. If the Chairperson of the meeting determines that a
nomination was not made in accordance with the foregoing procedures, the
Chairperson shall declare to the meeting that the nomination was defective and
such defective nomination shall be disregarded.
3.5 VACANCIES
Vacancies and newly created directorships resulting from any
increase in the authorized number of directors shall be filled in such manner
as shall be fixed by, or in the manner specified in, the Certificate of
Incorporation.
3.6 MEETINGS
3.6.1 REGULAR MEETINGS
Regular meetings of the Board of Directors may be held
without notice at such time and at such place as shall from time to time be
determined by the Board of Directors.
3.6.2 SPECIAL MEETINGS
Special meetings of the Board of Directors may be called by
the Chairperson, Chief Executive Officer or President on one day's notice to
each director, either personally or by telephone, express delivery service (so
that the scheduled delivery date of the notice is at least one day in advance
of the meeting), telegram or facsimile transmission, and on five days' notice
by mail (effective upon deposit of such notice in the mail). The notice need
not describe the purpose of a special meeting.
3.6.3 TELEPHONE MEETINGS
Members of the Board of Directors or any committee thereof
may participate in a meeting of the Board of Directors by any communication by
means of which all participating directors can simultaneously hear each other
during the meeting. A director participating in a meeting by this means is
deemed to be present in person at the meeting.
3.6.4 ACTION WITHOUT MEETING
Any action required or permitted to be taken at any meeting
of the Board of Directors or any committee thereof may be taken without a
meeting if the action is taken by all members of the Board of Directors or the
committee, as the case may be. The action must be evidenced by one or more
written consents describing the action taken, signed by each director, and
delivered to the Corporation for inclusion in the minute book.
3.6.5 WAIVER OF NOTICE OF MEETING
A director may waive any notice required by statute, the
Certificate of Incorporation or these Bylaws before or after the date and time
stated in the notice. Except as set forth below, the waiver must be in
writing, signed by the director entitled to the notice, and delivered to the
Corporation for inclusion in the minute book. Notwithstanding the foregoing, a
director's attendance at or participation in a meeting waives any required
notice to the director of the meeting unless the director at the beginning of
the meeting objects to holding the meeting or transacting business at the
meeting and does not thereafter vote for or assent to action taken at the
meeting.
3.7 QUORUM AND VOTE AT MEETINGS
At all meetings of the Board of Directors, a quorum of the
Board of Directors consists of a majority of the total number of directors
prescribed pursuant to Section 3.2 of these Bylaws. The vote 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, except as may be otherwise specifically
provided by statute or by the Certificate of Incorporation or by these Bylaws.
3.8 COMMITTEES OF DIRECTORS
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.
3.8.1 EXECUTIVE COMMITTEE
There shall be an Executive Committee of the Board of
Directors, which shall consist of no more than seven (7) members and shall
include the designees of the Series B Preferred Stock (one of which designees
shall be the chairperson of the Executive Committee) and the Officers. The
Executive 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 to the fullest extent permitted by applicable law.
3.9 COMPENSATION OF DIRECTORS
The Board of Directors shall have the authority to fix the
compensation of directors. No such payment shall preclude any director from
serving the Corporation in any other capacity and receiving compensation
therefor.
3.10 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.
4 OFFICERS
4.1 POSITIONS
The officers of the Corporation shall be a President, a
Secretary and a Treasurer, and such other officers as the Board of Directors
(or an officer authorized by the Board of Directors) from time to time may
appoint, including a Chairperson, a Chief Executive Officer, a Chief Operating
Officer, a Chief Financial Officer and one or more Vice Chairmen, Senior Vice
Presidents, Executive Vice Presidents, Group Vice Presidents, Vice Presidents,
Assistant Secretaries and Assistant Treasurers. Each such officer shall
exercise such powers and perform such duties as shall be set forth below and
such other powers and duties as from time to time may be specified by the
Board of Directors or by any officer(s) authorized by the Board of Directors
to prescribe the duties of such other officers. Any number of offices may be
held by the same person, except that in no event shall the President and the
Secretary be the same person. Each of the Chairperson, Chief Executive
Officer, Chief Operating Officer, Chief Financial Officer, President, and/or
any Senior Vice President, Executive Vice President, Group Vice President, or
Vice President may execute bonds, mortgages and other documents, except where
required or permitted by law to be otherwise executed and except where the
execution thereof shall be expressly delegated by the Board of Directors to
some other officer or agent of the Corporation.
4.2 CHAIRPERSON
The Chairperson shall (when present) preside at all meetings
of the Board of Directors and stockholders, and shall ensure that all orders
and resolutions of the Board of Directors and stockholders are carried into
effect. The Chairperson may execute bonds, mortgages and other contracts,
except where required or permitted by law to be otherwise signed and executed
and except where the signing and execution thereof shall be expressly
delegated by the Board of Directors to some other officer or agent of the
Corporation.
4.3 CHIEF EXECUTIVE OFFICER
Subject to the authority of the Board of Directors, the
Chief Executive Officer shall direct and supervise the business, operations,
and affairs of the Corporation and perform such other duties as may be
assigned him or her from time to time by the Board of Directors. In the
absence of the Chairperson, or if no Chairperson shall have been appointed,
the Chief Executive Officer shall (when present) preside at all meetings of
the Board of Directors and stockholders, and shall ensure that all orders and
resolutions of the Board of Directors and stockholders are carried into
effect. The Chief Executive Officer may execute bonds, mortgages and other
contracts, except where required or permitted by law to be otherwise signed
and executed and except where the signing and execution thereof shall be
expressly delegated by the Board of Directors to some other officer or agent
of the Corporation.
4.4 CHIEF OPERATING OFFICER
Subject to the authority of the Board of Directors, the
Chief Operating Officer shall be the chief operating officer and shall direct
and supervise the business, operations, and management of the Corporation and
perform such other duties as may be assigned him or her from time to time by
the Board of Directors. In the absence of the Chairperson, or if no
Chairperson shall have been appointed, and the absence of the Chief Executive
Officer, the Chief Operating Officer shall (when present) preside at all
meetings of the Board of Directors and stockholders, and shall ensure that all
orders and resolutions of the Board of Directors and stockholders are carried
into effect. The Chief Operating Officer may execute bonds, mortgages and
other contracts, except where required or permitted by law to be otherwise
signed and executed and except where the signing and execution thereof shall
be expressly delegated by the Board of Directors to some other officer or
agent of the Corporation.
4.5 CHIEF FINANCIAL OFFICER
Subject to the authority of the Board of Directors, the
Chief Financial Officer shall be the chief financial officer and shall direct
and supervise the business and financial affairs of the Corporation and
perform such other duties as may be assigned him or her from time to time by
the Board of Directors. In the absence of the Chairperson, or if no
Chairperson shall have been appointed, and the absence of the Chief Executive
Officer and the Chief Operating Officer, the Chief Financial Officer shall
(when present) preside at all meetings of the Board of Directors and
stockholders, and shall ensure that all orders and resolutions of the Board of
Directors and stockholders are carried into effect. The Chief Financial
Officer may execute bonds, mortgages and other contracts, except where
required or permitted by law to be otherwise signed and executed and except
where the signing and execution thereof shall be expressly delegated by the
Board of Directors to some other officer or agent of the Corporation.
4.6 PRESIDENT
Subject to the authority of the Board of Directors, in the
absence of the Chief Executive Officer and the Chief Operating Officer, the
President shall be the chief operating officer of the Corporation and shall
have responsibility and authority for management of the day-to-day operations
of the Corporation. The President may execute bonds, mortgages and other
contracts, except where required or permitted by law to be otherwise signed
and executed and except where the signing and execution thereof shall be
expressly delegated by the Board of Directors to some other officer or agent
of the Corporation.
4.7 VICE PRESIDENT
In the absence of the President or in the event of the
President's inability or refusal to act, the Vice President (or in the event
there shall be more than one Vice President, the Vice Presidents in the order
designated, or in the absence of any designation, then in the order of their
election) 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.
4.8 SECRETARY
The Secretary shall have responsibility for preparation of
minutes of meetings of the Board of Directors and of the stockholders and for
authenticating records of the Corporation. The Secretary shall give, or cause
to be given, notice of all meetings of the stockholders and special meetings
of the Board of Directors. The Secretary or an Assistant Secretary may also
attest all instruments signed by any other officer of the Corporation.
4.9 ASSISTANT SECRETARY
The Assistant Secretary, or if there shall be more than one,
the Assistant Secretaries in the order determined by the Board of Directors
(or if there shall have been no such determination, then in the order of their
election), shall, in the absence of the Secretary or in the event of the
Secretary's inability or refusal to act, perform the duties and exercise the
powers of the Secretary.
4.10 TREASURER
In the absence of the Chief Financial Officer, the Treasurer
shall be the chief financial officer of the Corporation and shall have
responsibility for the custody of the corporate funds and securities and shall
see to it that full and accurate accounts of receipts and disbursements are
kept in books belonging to the Corporation. The Treasurer shall render to the
Chairperson, the Chief Executive Officer, the President, and the Board of
Directors, upon request, an account of all financial transactions and of the
financial condition of the Corporation.
4.11 ASSISTANT TREASURER
The Assistant Treasurer, or if there shall be more than one,
the Assistant Treasurers in the order determined by the Board of Directors (or
if there shall have been no such determination, then in the order of their
election), shall, in the absence of the Treasurer or in the event of the
Treasurer's inability or refusal to act, perform the duties and exercise the
powers of the Treasurer.
4.12 TERM OF OFFICE
The officers of the Corporation shall hold office until
their successors are chosen and qualify or until their earlier resignation or
removal. Any officer may resign at any time upon written notice to the
Corporation. Any officer elected or appointed by or at the direction of the
Board of Directors may be removed at any time, with or without cause, by the
affirmative vote of a majority of the Board of Directors.
4.13 COMPENSATION
The compensation of officers of the Corporation shall be
fixed by the Board of Directors or by any officer(s) or committee(s)
authorized by the Board of Directors to prescribe the compensation of such
other officers.
4.14 FIDELITY BONDS
The Corporation may secure the fidelity of any or all of its
officers or agents by bond or otherwise.
5 CAPITAL STOCK
5.1 CERTIFICATES OF STOCK; UNCERTIFICATED SHARES
The shares of the Corporation shall be represented by
certificates, provided that the Board of Directors may provide by resolution
that some or all of any or all classes or series of the Corporation's stock
shall be uncertificated shares. Any such resolution shall not apply to shares
represented by a certificate until such certificate is surrendered to the
Corporation. Notwithstanding the adoption of such a resolution by the Board of
Directors, every holder of stock represented by certificates, and upon request
every holder of uncertificated shares, shall be entitled to have a certificate
(representing the number of shares registered in certificate form) signed in
the name of the Corporation by the Chairperson, President or any Vice
President, and by the Treasurer, Secretary or any Assistant Treasurer or
Assistant Secretary of the Corporation. Any or all of the signatures on the
certificate may be by facsimile. In case any officer, transfer agent or
registrar whose signature or facsimile signature appears on 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.
5.2 LOST CERTIFICATES
The Board of Directors, Chairperson, Chief Executive
Officer, President or Secretary may direct a new certificate of stock to be
issued in place of any certificate theretofore issued by the Corporation and
alleged to have been lost, stolen or destroyed, upon the making of an
affidavit of that fact by the person claiming that the certificate of stock
has been lost, stolen or destroyed. When authorizing such issuance of a new
certificate, the Board of Directors or any such officer may, as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or
destroyed certificate or certificates, or such owner's legal representative,
to advertise the same in such manner as the Board of Directors or such officer
shall require and/or to give the Corporation a bond or indemnity, in such sum
or on such terms and conditions as the Board of Directors or such officer may
direct, as indemnity against any claim that may be made against the
Corporation on account of the certificate alleged to have been lost, stolen or
destroyed or on account of the issuance of such new certificate or
uncertificated shares.
5.3 RECORD DATE
5.3.1 ACTIONS BY STOCKHOLDERS
In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders, 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 (60) days nor
less than ten (10) 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 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, unless the Board of Directors fixes a
new record date for the adjourned meeting.
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 (10) 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 the Delaware General Corporation Law, shall
be the first date on which a signed written consent setting forth the action
taken or proposed to be taken is delivered to the Corporation in the manner
prescribed by Section 213(b) of the Delaware General Corporation Law. If no
record date has been fixed by the Board of Directors and prior action by the
Board of Directors is required by the Delaware General Corporation 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 resolution taking such prior
action.
5.3.2 PAYMENTS
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.
5.4 STOCKHOLDERS OF RECORD
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, to receive notifications, to vote as such owner, and to exercise
all the rights and powers of an owner. The Corporation 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 may be provided by the Delaware General
Corporation Law.
6 INDEMNIFICATION
6.1 POWER TO INDEMNIFY IN ACTIONS, SUITS OR PROCEEDINGS OTHER
THAN THOSE BY OR IN THE RIGHT OF THE CORPORATION.
Subject to Section 6.3, 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, had no
reasonable cause to believe such person's 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 the 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 such person's conduct was
unlawful.
6.2 POWER TO INDEMNIFY IN ACTIONS, SUITS OR PROCEEDINGS BY OR IN
THE RIGHT OF THE CORPORATION.
Subject to Section 6.3, 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.
6.3 AUTHORIZATION OF INDEMNIFICATION.
Any indemnification under this Section 6 (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 6.1 or Section 6.2, 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.
6.4 GOOD FAITH DEFINED.
For purposes of any determination under Section 6.3, 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 such person's 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 6.4 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 6.4 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 6.1
or 6.2, as the case may be.
6.5 INDEMNIFICATION BY A COURT.
Notwithstanding any contrary determination in the specific
case under Section 6.3, and notwithstanding the absence of any determination
thereunder, any director or officer may apply to the Court of Chancery in the
State of Delaware for indemnification to the extent otherwise permissible
under Sections 6.1 and 6.2. 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 6.1 or 6.2, as the case
may be. Neither a contrary determination in the specific case under Section
6.3 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 6.5 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.
6.6 EXPENSES PAYABLE IN ADVANCE.
Expenses incurred by a director or officer in defending any
civil, criminal, administrative or investigative 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 Section 6.
6.7 NONEXCLUSIVITY OF INDEMNIFICATION AND ADVANCEMENT OF
EXPENSES.
The indemnification and advancement of expenses provided by
or granted pursuant to this Section 6 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, any By-Law, agreement,
vote of stockholders or disinterested directors 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 Sections 6.1 and 6.2 shall be made
to the fullest extent permitted by law. The provisions of this Section 6 shall
not be deemed to preclude the indemnification of any person who is not
specified in Section 6.1 or 6.2 but whom the Corporation has the power or
obligation to indemnify under the provisions of the General Corporation Law of
the State of Delaware, or otherwise.
6.8 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
Section 6.
6.9 CERTAIN DEFINITIONS.
For purposes of this Section 6, 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 Section 6 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 Section 6, 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 Section 6.
6.10 SURVIVAL OF INDEMNIFICATION AND ADVANCEMENT OF EXPENSES.
The indemnification and advancement of expenses provided by,
or granted pursuant to, this Section 6 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.
6.11 LIMITATION ON INDEMNIFICATION.
Notwithstanding anything contained in this Section 6 to the
contrary, except for proceedings to enforce rights to indemnification (which
shall be governed by Section 6.5), the Corporation shall not be obligated to
indemnify any director or officer 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.
6.12 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 Section 6 to directors and officers of the
Corporation.
6.13 REPEAL OR MODIFICATION.
Any repeal or other modification of this Section 6 shall not
limit any rights of indemnification then existing or arising out of events,
acts, omissions or circumstances occurring or existing prior to such repeal or
modification, including, without limitation, the right to indemnification for
proceedings commenced after such repeal or modification to enforce this
Section 6 with regard to acts, omissions, events or circumstances occurring or
existing prior to such repeal or modification.
6.14 SEVERABILITY.
If this Section 6 or any portion hereof shall be invalidated
on any ground by any court of competent jurisdiction, then the Corporation
shall nevertheless indemnify each director and officer of the Corporation as
to costs, charges and expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement with respect to any proceeding, whether civil,
criminal, administrative or investigative, including an action by or in the
right of the Corporation, to the full extent permitted by any applicable
portion of this Section 6 that shall not have been invalidated and to the full
extent permitted by applicable law.
7 GENERAL PROVISIONS
7.1 INSPECTION OF BOOKS AND RECORDS
Any stockholder, in person or by attorney or other agent,
shall, upon written demand under oath stating the purpose thereof, have the
right during the usual hours for business to inspect for any proper purpose
the Corporation's stock ledger, a list of its stockholders, and its other
books and records, and to make copies or extracts therefrom. A proper purpose
shall mean a purpose reasonably related to such person's interest as a
stockholder. In every instance where an attorney or other agent shall be the
person who seeks the right to inspection, the demand under oath shall be
accompanied by a power of attorney or such other writing which authorizes the
attorney or other agent to so act on behalf of the stockholder. The demand
under oath shall be directed to the Corporation at its registered office or at
its principal place of business.
7.2 DIVIDENDS
The Board of Directors may declare dividends upon the
capital stock of the Corporation, subject to the provisions of the Certificate
of Incorporation and the laws of the State of Delaware.
7.3 RESERVES
The Board of Directors of the Corporation may set apart, out
of the funds of the Corporation available for dividends, a reserve or reserves
for any proper purpose and may abolish any such reserve.
7.4 EXECUTION OF INSTRUMENTS
All checks, drafts or other orders for the payment of money,
and promissory 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.
7.5 FISCAL YEAR
The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
7.6 SEAL
The Corporation shall not have a corporate seal. All
instruments that are executed on behalf of the Corporation which are
acknowledged and which affect an interest in real estate shall be executed by
the Chairperson, the Chief Executive Officer, Chief Financial Officer, the
President or any Vice President and by the Secretary, the Treasurer, any
Assistant Secretary or any Assistant Treasurer, except where required or
permitted by law to be otherwise executed and except where the execution
thereof shall be expressly delegated by the Board of Directors to some other
officer or agent of the Corporation.
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