EXHIBIT 2
AMENDED AND RESTATED BY-LAWS
OF
NTL INCORPORATED
(hereinafter called the "Corporation")
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall
be located at 9 East Loockerman Street, City of Dover, County of Kent, in the
State of Delaware 19901. The name of its registered agent at that address is
National Registered Agents, Inc.
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 as stated in the notice of meeting or
in a duly executed waiver of notice thereof. If authorized by the Board of
Directors in its sole discretion, and subject to such guidelines
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and procedures as the Board of Directors may adopt, stockholders and
proxyholders not physically present at a meeting of stockholders may, by means
of remote communication, (a) participate in a meeting of stockholders and (b)
be deemed present in person and vote at a meeting of stockholders whether such
meeting is to be held at a designated place or solely by means of remote
communication; provided that (i) the Corporation shall implement reasonable
measures to verify that each person deemed present and permitted to vote at
the meeting by means of remote communication is a stockholder or proxyholder,
(ii) the Corporation shall implement reasonable measures to provide such
stockholders and proxyholders a reasonable opportunity to participate in the
meeting and to vote on matters submitted to the stockholders, including an
opportunity to read or hear the proceedings of the meeting substantially
concurrently with such proceedings and (iii) if any stockholder or proxyholder
votes or takes other action at the meeting by means of remote communication, a
record of such vote or other action shall be maintained by the Corporation.
Section 2. Annual Meetings. Annual meetings of stockholders shall be held on
such date and at such time as shall be designated from time to time by the
Board of Directors and stated in the notice of the meeting, at which meetings
the stockholders shall elect by a plurality vote a Board of Directors (subject
to the rights, if any, of the holders of shares of preferred stock of the
Corporation to nominate and elect a specified number of directors as provided
in the Certificate of Incorporation of the Corporation, as amended and
restated from time to time (the "Certificate of Incorporation")), and transact
such other business as may properly be brought before the meeting in
accordance with these
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amended and restated by-laws of the Corporation, as amended and restated from
time to time (the "By-laws").
Section 3. Special Meetings. Except as otherwise required by applicable law or
by the Certificate of Incorporation, special meetings of stockholders for any
purpose or purposes may be called at any time solely by a majority vote of the
Board of Directors, the Chairman of the Board of Directors, the President or a
majority vote of 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 special meetings. Special meetings of stockholders may not
be called by any other person or persons.
Section 4. Advance Notification of Business to be Transacted at Meetings of
Stockholders. To be properly brought before the annual or any special
stockholders' meeting, business must be either (a) specified in the notice of
meeting (or any supplement or amendment thereto) given by or at the direction
of the Board of Directors (or any duly authorized committee thereof), (b)
otherwise properly brought before the meeting by or at the direction of the
Board of Directors (or any duly authorized committee thereof), or (c) solely
in the case of the annual meeting, otherwise properly brought before the
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 4
and on the record date for the determination of stockholders entitled to
notice of and to vote at an annual meeting and (ii) who complies with the
notice procedures set forth in this Section 4.
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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 written notice to the
Secretary of the Corporation must be delivered to or mailed and received at
the principal executive offices of the Corporation not less than seventy-five
(75) days nor more than ninety (90) days prior to the first anniversary of the
date of the immediately preceding year's annual meeting of stockholders;
provided, however, that if the date of the annual meeting is advanced more
than thirty (30) days prior to or delayed by more than thirty (30) days after
the anniversary of the preceding year's annual meeting, to be timely, notice
by the stockholder must be so received not later than the close of business on
the tenth (10th) day following the day on which notice of the date of the
annual meeting was mailed or public disclosure of the date of the annual
meeting is first given or made (which for this purpose shall include any and
all filings of the Corporation made on the EDGAR system of the Securities and
Exchange Commission or any similar public database maintained by the
Securities and Exchange Commission), whichever first occurs.
To be in proper written form, a stockholder's notice to the
Secretary of the Corporation 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 meeting and the reasons for
conducting such business at the meeting, (ii) the name and record address of
such stockholder proposing such business, (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
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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 meeting to bring such business before the meeting.
Notwithstanding anything in these By-laws to the contrary,
no business shall be conducted at the annual or any special stockholders'
meeting except business brought before the meeting in accordance with the
procedures set forth in this Section 4; provided, however, that, once business
has been properly brought before the meeting in accordance with such
procedures, nothing in this Section 4 shall be deemed to preclude discussion
by any stockholder of any such business. The officer of the Corporation
presiding at the meeting shall, if the facts warrant, determine and declare to
the meeting that the business was not properly brought before the meeting in
accordance with the provisions of this Section 4, and if such officer shall so
determine, such officer shall so declare to the meeting that any such business
not properly brought before the meeting shall not be transacted.
Section 5. Advance Notification of 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 rights, if
any, of the holders of shares of preferred stock of the Corporation to
nominate and elect a specified number of directors in certain circumstances.
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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 5 and on the record date for the determination of stockholders
entitled to notice of and to vote at such meeting and (ii) who complies with
the notice procedures set forth in this Section 5.
In addition to any other applicable requirements, for a
nomination 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 written notice to the
Secretary of the Corporation must be delivered to or mailed and received at
the principal executive offices of the Corporation, in the case of: (x) an
annual meeting, not less than seventy-five (75) days nor more than ninety (90)
days prior to the first anniversary of the date of the immediately preceding
year's annual meeting of stockholders; provided, however, that if the date of
the annual meeting is advanced more than thirty (30) days prior to or delayed
by more than thirty (30) days after the anniversary of the preceding year's
annual meeting, to be timely, notice by the stockholder must be so received
not later than the close of business on the tenth (10th) day following the day
on which notice of the date of the annual meeting was mailed or public
disclosure of the date of the annual meeting is first given or made (which for
this purpose shall include any and all filings of the Corporation made on the
EDGAR system of the Securities and Exchange Commission or
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any similar public database maintained by the Securities and Exchange
Commission), whichever first occurs; and (y) 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 is first given or made (which for this purpose shall include
any and all filings of the Corporation made on the EDGAR system of the
Securities and Exchange Commission or any similar public database maintained
by the Securities and Exchange Commission).
To be in proper written form, a stockholder's notice to the
Secretary of the Corporation 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 proposing such nomination, (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
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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 or referred to as a nominee and to serve as a
director if elected. The Corporation may require any proposed nominee to
furnish such other information (which may include meetings to discuss the
information) as may reasonably be required by the Corporation to determine the
eligibility of such proposed nominee to serve as a director of the
Corporation.
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 5. The officer of the Corporation presiding at the meeting
shall, if the facts warrant, determine and declare to the meeting that the
nomination was defective in accordance with the provisions of this Section 5,
and if such officer shall also determine, such officer shall so declare to the
meeting that any such defective nomination shall be disregarded.
Section 6. 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, if any, date and hour of the meeting, the means of
remote communications, if any, by which stockholders and proxyholders may be
deemed to be present in person and vote at such meeting and, in the case of a
special meeting, the purpose or purposes for which the
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meeting is called shall be given not less than ten (10) nor more than sixty
(60) days before the date of the meeting to each stockholder entitled to
notice of and to vote at such meeting. At a special meeting of stockholders,
only such business as is stated in such notice (or any supplement or amendment
thereto) shall be acted upon thereat.
Section 7. Quorum. Except as otherwise required by applicable law or by the
Certificate of Incorporation, the holders of a majority of the capital stock
issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business. A quorum, once established,
shall not be broken by the withdrawal of enough votes to leave less than a
quorum. If, however, such quorum shall not be present or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat,
present in person or represented by proxy, shall have power to adjourn the
meeting from time to time, in the manner provided in Section 8 of this Article
II.
Section 8. 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, if any, thereof
or the means of remote communications, if any, by which stockholders and
proxyholders may be deemed to be present in person and vote at such meeting
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 (30) days, or if after adjournment a new record date is fixed for the
adjourned meeting, notice of the adjourned meeting shall be sent to each
stockholder of
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record entitled to notice of and to vote at the meeting in
accordance with the requirements of Section 6 of this Article II.
Section 9. Voting. Except as otherwise required by applicable law or by the
Certificate of Incorporation, 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 stock represented and entitled to
vote thereat, voting as a single class. Except as otherwise provided in the
Certificate of Incorporation and subject to Section 5 of Article V of these
By-laws, each stockholder represented at a meeting of stockholders shall be
entitled to cast one (1) 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 as provided in Section 10 of this Article II. The Board of Directors, in
its discretion, or the officer of the Corporation presiding at a meeting of
the stockholders, in such officer's discretion, may require that any votes
cast at such meeting be cast by written ballot.
Section 10. Proxies. Each stockholder entitled to vote at a meeting of the
stockholders may authorize another person or persons to act for such
stockholder as proxy but no proxy shall be voted on after three (3) years from
its date, unless such proxy provides for a longer period. Without limiting the
manner in which a stockholder may authorize another person or persons to act
for such stockholder as proxy, the following shall constitute a valid means by
which a stockholder may grant such authority:
(a) A stockholder may execute a writing authorizing another person or
persons to act for such stockholder as proxy. Execution may be accomplished by
the stockholder or such stockholder's authorized officer, director, employee
or agent
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signing such writing or causing such person's signature to be affixed
to such writing by any reasonable means, including, but not limited to, by
facsimile signature.
(b) A stockholder may authorize another person or persons to act for
such stockholder as proxy by transmitting or authorizing the transmission of a
telegram, cablegram or other means of electronic transmission to the person
who will be the holder of the proxy or to a proxy solicitation firm, proxy
support service organization or like agent duly authorized by the person who
will be the holder of the proxy to receive such telegram, cablegram or other
means of electronic transmission; provided that any such telegram, cablegram
or other means of electronic transmission must either set forth or be
submitted with information from which it can be determined that the telegram,
cablegram or other electronic transmission was authorized by the stockholder.
If it is determined that such telegrams, cablegrams or other electronic
transmissions are valid, the inspectors or, if there are no inspectors, such
other persons making that determination shall specify the information upon
which they relied.
Any copy, facsimile telecommunication or other reliable reproduction
of the writing or transmission authorizing another person or persons to act as
proxy for a stockholder may be substituted or used in lieu of the original
writing or transmission for any and all purposes for which the original
writing or transmission could be used; provided that such copy, facsimile
telecommunication or other reliable reproduction shall be a complete
reproduction of the entire original writing or transmission.
Section 11. 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 (10)
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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 of the Corporation
registered in the name of each stockholder. Such list shall be open to the
examination of any stockholder, for any purpose germane to the meeting, during
ordinary business hours, for a period of at least ten (10) days prior to the
meeting (a) on a reasonably accessible electronic network, provided that the
information required to gain access to such list is provided with the notice
of the meeting or (b) during ordinary business hours, at the principal place
of business of the Corporation. This list need not include electronic mail
addresses or other electronic contact information. In the event that the
Corporation determines to make the list available on an electronic network,
the Corporation may take reasonable steps to ensure that such information is
available only to stockholders of the Corporation. If the meeting is to be
held at a place, then the list shall be produced and kept at the time and
place of the meeting during the whole time thereof, and may be inspected by
any stockholder who is present. If the meeting is to be held solely by means
of remote communication, then the list shall also be open to the examination
of any stockholder during the whole time of the meeting on a reasonably
accessible electronic network, and the information required to access such
list shall be provided with the notice of the meeting.
Section 12. 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 11 of this Article II or the books of the
Corporation, or to vote in person or by proxy at any meeting of stockholders.
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Section 13. Conduct of Meetings. The Board of Directors may adopt by
resolution such rules and regulations for the conduct of any meeting of the
stockholders as it shall deem appropriate. Except to the extent inconsistent
with such rules and regulations 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: (a) the establishment of an agenda or order
of business for the meeting; (b) the determination of when the polls shall
open and close for any given matter to be voted upon at the meeting; (c) rules
and procedures for maintaining order at the meeting and the safety of those
present; (d) 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; (e) restrictions on entry to the meeting after the time fixed for
the commencement thereof; and (f) limitations on the time allotted to
questions or comments by participants.
Section 14. Inspectors of Election. In advance of any meeting of the
stockholders, the Board of Directors, or, if authorized by resolution of the
Board of Directors, the Chairman or the President, shall appoint one or more
inspectors to act at the meeting and make a written report thereof. One or
more other persons may be designated as alternate inspectors to replace any
inspector who fails to act. If no inspector or alternate is able to act at a
meeting of the stockholders, the Chairman of the meeting shall appoint one or
more inspectors to act at the meeting. Unless otherwise required by applicable
law,
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inspectors may be officers, employees or agents of the Corporation;
provided that no director or candidate for the office of director shall act as
an inspector of an election of directors. Each inspector, before entering upon
the discharge of the duties of inspector, shall take and sign an oath
faithfully to execute the duties of inspector with strict impartiality and
according to the best of such inspector's ability. The inspector shall have
the duties prescribed by applicable law and shall take charge of the polls
and, when the vote is completed, shall make a certificate of the result of the
vote taken and of such other facts as may be required by applicable law.
Section 15. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of the
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 (60) 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 the stockholders shall be at the close of
business on the day preceding the day on which notice is given. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of the stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for
the adjourned meeting.
ARTICLE III
DIRECTORS
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Section 1. Election of Directors. Subject to the rights, if any, of the
holders of shares of preferred stock of the Corporation as provided in the
Certificate of Incorporation, and except as provided in Section 2 of this
Article III, directors shall be elected by a plurality of the votes cast at
each annual meeting of stockholders and entitled to vote on the election of
directors, and each director so elected shall hold office as provided by
Article V of the Certificate of Incorporation.
Section 2. Vacancies. Except as otherwise required by applicable law or by the
Certificate of Incorporation, any vacancy on the Board of Directors, howsoever
resulting, may be filled by a majority of the directors then in office, though
less than a quorum, or by a sole remaining director. Any director elected to
fill a vacancy shall hold office for a term that shall coincide with the term
of the class to which such director shall have been elected except in the case
a director elected by a class or series of preferred stock of the Corporation
which shall be governed by the provisions of the Certificate of Incorporation.
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 directed or 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
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time be determined by the Board of Directors. Special meetings of the Board of
Directors may be called by the Chairman of the Board of Directors, the
President or by a majority vote of the Board of Directors. Notice thereof
stating the place, date and hour of the meeting shall be given to each
director either by mail not less than forty-eight (48) hours before the date
of the meeting, or personally or by telephone, telegram, telex or similar
means of communication 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. Organization. At each meeting of the Board of Directors, the
Chairman of the Board of Directors, or, in his or her absence, a director
chosen by a majority of the directors present, shall act as Chairman. The
Secretary of the Corporation shall act as secretary at each meeting of the
Board of Directors. In case the Secretary shall be absent from any meeting of
the Board of Directors, an Assistant Secretary shall perform the duties of
Secretary at such meeting; and in the absence from any such meeting of the
Secretary and all the Assistant Secretaries, the Chairman of the meeting may
appoint any person to act as Secretary of the meeting.
Section 6. Resignations and Removals of Directors. Any director of the
Corporation may resign at any time, by giving notice in writing or by
electronic transmission to the Chairman of the Board of Directors, the
President or the Secretary of the Corporation. Such resignation shall take
effect at the time therein specified or, if no time is specified, immediately;
and, unless otherwise specified in such notice, the acceptance of such
resignation shall not be necessary to make it effective. Subject to the
rights, if any, of the holders of shares of preferred stock of the Corporation
as provided in the Certificate of
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Incorporation, any or all of the directors may be removed from office at any
time, but only for cause and only by the affirmative vote of the holders of
two-thirds (66 2/3%) of the outstanding shares of the Corporation then entitled
to vote generally in the election of directors, considered for purposes of
this Section 6 as one class.
Section 7. Quorum; Action of the Board of Directors. Except as otherwise
required by applicable law or by 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, and notice of the time and
place of any such adjourned meeting shall be given to all of the directors
unless such time and place were announced at the meeting at which the
adjournment was taken, in which case such notice shall only be given to the
directors who were not present thereat.
Section 8. Action by Written Consent. Any action required or permitted to be
taken at any meeting of the Board of Directors or of any committee thereof may
be taken without a meeting, if all the members of the Board of Directors or
such committee, as the case may be, consent thereto in writing or by
electronic transmission, and the writing or writings or electronic
transmission or transmissions are filed with the minutes of proceedings of the
Board of Directors or such committee. Such filing shall be in paper form if
the minutes are maintained in paper form and shall be in electronic form if
the minutes are maintained in electronic form.
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Section 9. Meetings by Means of Conference Telephone. Members of the Board of
Directors of the Corporation, or any committee duly designated by the Board of
Directors, may participate in a meeting of the Board of Directors or such
committee by means of a conference telephone or other 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 9 shall
constitute presence in person at such meeting.
Section 10. 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 applicable 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.
Unless the Board of Directors or such committee shall otherwise provide,
regular and special meetings and other actions of any committee shall be
governed by the provisions of this Article III applicable to meetings and
actions of the Board of Directors. Each
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committee shall serve at the pleasure of the Board of Directors and have such
name as may be determined from time to time by resolution adopted by the Board
of Directors. Each committee shall keep regular minutes and report to the
Board of Directors on a regular basis.
Section 11. Fees and Compensation. The directors and members of committees may
receive such compensation, if any, for their services, and such reimbursement
for expenses, as may be fixed or determined by the Board of Directors. Subject
to applicable law and the rules and regulations of any securities exchange,
inter-dealer quotation system or regulated quotation service on which
securities of the Corporation are listed or admitted for trading, no such
payment shall preclude any director from serving the Corporation or any
subsidiary or affiliate thereof in any other capacity and receiving
compensation therefore. Subject to applicable law and the rules and
regulations of any securities exchange, inter-dealer quotation system or
regulated quotation service on which securities of the Corporation are listed
or admitted for trading, members of special or standing committees may be
allowed compensation for service as committee members, such compensation to be
determined by the Board of Directors or a separate committee thereof.
Section 12. Interested Directors; Quorum. No contract or transaction between
the Corporation and one or more of its directors or officers, or between the
Corporation and any other corporation, partnership, association, or other
organization in which one or more of its directors or officers are directors
or officers, or have a financial interest, shall be void or voidable solely
for this reason, or solely because any such director or officer is present at
or participates in the meeting of the Board of Directors or committee thereof
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which authorizes the contract or transaction, or solely because any such
director's or officer's votes are counted for such purpose if: (a) the
material facts as to such director's 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 (b) the material facts as to such
director's 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 (c) 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, one or more Vice Presidents, a
Secretary and a Treasurer. The Board of Directors, in its discretion, may also
choose a Chairman of the Board of Directors (who must be a director) and
Assistant Secretaries, Assistant Treasurers and other officers. Such 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
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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. Any number of offices may be
held by the same person, unless otherwise prohibited by applicable law, the
Certificate of Incorporation or these By-laws. The officers of the Corporation
need not be stockholders of the Corporation nor, except in the case of the
Chairman of the Board of Directors, need such officers be directors of the
Corporation.
Section 2. Election of Officers; Vacancies; and Resignations and Removals. The
Board of Directors shall elect the officers of the Corporation, who shall be
subject to the control of the Board of Directors and 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 each officer of
the Corporation shall hold office until such officer's successor is chosen and
qualified, or until their earlier death, resignation, retirement,
disqualification or removal from office. Any officer elected by the Board of
Directors may be removed at any time, with or without cause, by the Board of
Directors, subject to the terms and conditions of any employment or other
agreement of such officer with the Corporation. 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 or a committee thereof. Any officer of the Corporation may resign at
any time, by giving notice in writing or by electronic transmission to the
Chairman of the Board of Directors, the President or the Secretary of the
Corporation. Such resignation shall take effect at the time therein specified
or, if no time is specified,
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immediately; and, unless otherwise specified in
such notice, the acceptance of such resignation shall not be necessary to make
it effective.
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 (or take action by written
consent) in which the Corporation may own securities and at any such meeting
(or when taking such action by written consent) 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 (or in its action by written consent). The Board of
Directors may, by resolution, from time to time confer like powers upon any
other person or persons.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, by, or in the name of the
Corporation by the (a) Chairman or Vice Chairman of the Board of Directors,
the President or a Vice President of the Corporation and (b) Treasurer or an
Assistant Treasurer, or the Secretary or an Assistant Secretary of the
Corporation, certifying the number of shares owned by such
22
stockholder in the Corporation. If the Corporation shall be authorized to
issue more than one class of stock or more than one series of any class, the
designations, preferences and relative, participating, optional or other
special rights of each class of stock or series thereof and the
qualifications, limitations or restriction of such preferences and/or rights
shall be set forth in full or summarized on the face or back of the
certificate which the Corporation shall issue to represent such class or
series of stock, or in the case of uncertificated shares of stock, in the
notice sent pursuant to Section 151(f) of the Delaware General Corporation Law
(the "DGCL"); provided that, except as otherwise provided in Section 202 of
the DGCL, in lieu of the foregoing requirements, there may be set forth on the
face or back of the certificate which the Corporation shall issue to represent
such class or series of stock, or in the case of uncertificated shares of
stock, in the notice sent pursuant to Section 151(f) of the DGCL, a statement
that the Corporation will furnish without charge to each stockholder who so
requests the designations, preferences and relative, participating, optional
or other special rights of each class of stock or series thereof and the
qualifications, limitations or restrictions of such preferences and/or rights.
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.
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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
a written affidavit delivered to the Corporation of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate, the Board of Directors may, in
its discretion and as a condition precedent to the issuance thereof, require
the owner of such lost, stolen or destroyed certificate, or such 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 or provide an indemnity to
the Corporation in such sum as the Corporation may direct as indemnity against
any claim that may be made against the Corporation on account of the alleged
loss, theft or destruction of such certificates or the issuance of such new
certificate.
Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by applicable law, any agreement among the stockholders of
the Corporation and the Corporation (if a party), the Certificate of
Incorporation and in these By-laws. Transfers of stock shall be made on the
books of the Corporation only by the person named in the certificate or by
such person's attorney lawfully constituted in writing and upon the surrender
of the certificate therefor, properly endorsed for transfer and payment of all
necessary transfer taxes; provided, however, that such surrender and
endorsement or payment of taxes shall not be required in any case in which the
officers of the Corporation shall determine to waive such requirement. Every
certificate exchanged, returned or surrendered to the Corporation shall be
marked "Cancelled," with the date of cancellation, by the Secretary or
Assistant Secretary of the Corporation or the transfer
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agent thereof. No transfer of stock shall be valid as against the Corporation
for any purpose until it shall have been entered in the stock records of the
Corporation by an entry showing from and to whom it was transferred and any
other material information.
Section 5. Dividend Record Date. 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 (60) 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 applicable
law.
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Section 7. Transfer and Registry Agents. The Corporation may from time to time
maintain one or more transfer offices or agencies and registry offices or
agencies at such place or places as may be determined from time to time by the
Board of Directors.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by applicable law, the
Certificate of Incorporation or these By-laws, to be given to any director,
member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at such
person's address as it appears on the records of the Corporation, with postage
thereon prepaid, and such notice shall be deemed to be given at the time when
the same shall be deposited in the United States mail. Written notice may also
be given personally or by telegram, telex, cable or facsimile transmission.
Section 2. Waivers of Notice. Whenever any notice is required by applicable
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 or on behalf of the person or persons entitled to said notice, or a
waiver by electronic transmission by or on behalf of 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
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meeting is not lawfully called or convened. Neither the business to be
transacted at, nor the purpose of, any annual or special meeting of
stockholders or any regular or special meeting of the directors or members of
a committee of directors need be specified in any written waiver of notice
unless so required by applicable law, the Certificate of Incorporation or
these By-Laws.
ARTICLE VII
Indemnification of Directors and Officers
Section 1. Power to Indemnify in Actions, Suits or Proceedings other than
those by or in the Right of the Corporation. Each person who was or is a party
or is threatened to be made a party to or is involved in any threatened,
pending or completed action, suit, or proceeding, whether civil, criminal,
administrative or investigative (hereinafter a "proceeding"), other than an
action by or in the right of the Corporation, by reason of the fact that such
person or a person of whom such person is the legal representative is or was a
director or officer of the Corporation or is or was serving at the request of
the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, whether
the basis of such proceeding is alleged action in an official capacity as a
director, officer, employee or agent or in any other capacity while serving as
a director, officer, employee or agent, shall be indemnified and held harmless
by the Corporation to the fullest extent authorized by the DGCL as the same
exists or may hereafter be amended (but, in the case of any such amendment,
only to the extent that such amendment permits the Corporation to provide
broader indemnification rights than the DGCL permitted the Corporation to
provide immediately
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prior to such amendment) 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 and the
termination of any 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,
against all expense, liability and loss (including attorneys' fees, judgments,
fines or penalties and amounts paid or to be paid in settlement) actually and
reasonably incurred or suffered by such person in connection therewith, and
such indemnification shall continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of such
person's heirs, executors, administrators and legal representatives.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the
Right of the Corporation. Subject to Section 3 of this Article VII, the
Corporation shall indemnify and hold harmless to the fullest extent authorized
by the DGCL as the same exists or may hereafter be amended (but, in the case
of any such amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than the DGCL permitted
the Corporation to provide immediately prior to such amendment) any person who
was or is a party or is threatened to be made a party to or is involved in any
threatened, pending or completed proceeding by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that such
person or a person of
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whom such person is the legal representative is or was a
director or officer of the Corporation or is or was serving at the request of
the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, whether
the basis of such proceeding is alleged action in an official capacity as a
director, officer, employee or agent or in any other capacity while serving as
a director, officer, employee or agent, against all expenses (including
attorneys' fees) actually and reasonably incurred by such person in connection
therewith 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 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 of the State of Delaware 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
expenses which the Court of Chancery of the State of Delaware shall deem
proper.
Section 3. Procedure. To obtain indemnification under this Article VII (unless
ordered by a court), a claimant shall submit to the Corporation a written
request (hereinafter a "demand"), including therein or therewith such
documentation and information as is reasonably available to the claimant and
is reasonably necessary to determine whether and to what extent the claimant
is entitled to indemnification. Upon written demand by a claimant for
indemnification pursuant to the first sentence of this Section 3, a
determination shall be made as to whether indemnification of the claimant is
proper in the circumstances because such person has met the applicable
standard of conduct set forth in
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Section 1 or Section 2 of this Article VII, as the case may be. With respect
to a person who is a director or officer at the time of determination, the
determination of the claimant's entitlement to indemnification shall be made
as follows (i) by a majority vote of the Disinterested Directors (as defined
in Section 11 of this Article VII) who are not parties to such proceeding,
even though less than a quorum, or (ii) by a committee of Disinterested
Directors designated by a majority vote of Disinterested Directors, even
though less than a quorum, or (iii) if there are no Disinterested Directors,
or if the Disinterested Directors so direct, by Independent Counsel (as
defined in Section 11 of this Article VII) in a written opinion (a copy of
which will be delivered to the claimant), or (iv) by the stockholders. With
respect to former directors and officers and any other persons entitled to
indemnification pursuant to this Article VII, the determination shall be made
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 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. If it is so determined that the claimant is entitled to indemnification,
payment to the claimant shall be made within twenty (20) days after such
determination. The right to indemnification conferred in this Article VII
shall be a contract right and shall, subject to applicable law, include the
right to be paid by the Corporation the expenses incurred in defending any
such proceeding in advance of its final disposition, such advances to be paid
by the Corporation within twenty (20) days after the receipt by
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the Corporation of a statement or statements (setting forth in reasonable
detail an itemized account of amounts due) from the claimant (or a statement
from a third party for services rendered to the claimant) requesting such
advance or advances from time to time; provided, however, that if the DGCL
requires, the payment of such expenses incurred by a director or officer in
such person's capacity as a director or officer (and not in any other capacity
in which service was or is rendered by such person while a director or
officer) in advance of the final disposition of a proceeding, shall be made
only upon delivery to the Corporation of an undertaking by or on behalf of
such director or officer, to repay all amounts so advanced if it shall
ultimately be determined that such director or officer is not entitled to be
indemnified under this Article VII or otherwise. Notwithstanding anything to
the contrary contained in this Article VII (including Section 13 of this
Article VII), no demand on the Corporation will be required for a claimant
seeking to enforce his right to indemnification and advancement of expenses
under this Article VII.
Section 4. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VII, and
notwithstanding the absence of any determination thereunder, any director or
officer may apply to the Court of Chancery of the State of Delaware or any
other court of competent jurisdiction in the State of Delaware for
indemnification to the extent otherwise permissible under Section 1 or Section
2 of this Article VII. 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
standard of conduct set forth in Section 1 or Section 2 of this Article VII,
as the case may be. Neither a contrary
31
determination in the specific case under Section 3 of this Article VII 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 4 shall be given to the Corporation
promptly upon the filing of such application. If successful, in whole or in
part, the director or officer seeking indemnification shall also be entitled
to be paid the expense of prosecuting such application.
Section 5. Remedies for Non-Payment. If a claim under Section 1 or Section 2
of this Article VII is not paid in full by the Corporation within thirty (30)
days after a demand pursuant to Section 3 of this Article VII has been
received by the Corporation (or if demand is excused pursuant to Section 3 of
this Article VII, thirty (30) days after written notice to the Corporation),
the claimant may at any time thereafter bring suit against the Corporation to
recover the unpaid amount of the claim. It shall be a defense to any such
action (other than an action brought to enforce a claim for expenses incurred
in defending any proceeding in advance of its final disposition where the
required undertaking, if any is required, has been tendered to the
Corporation) that the claimant has not met the standard of conduct set forth
in Section 1 or Section 2 of this Article VII, as the case may be, but the
burden of proving such defense shall be on the Corporation.
Section 6. Binding Effect. If a determination shall have been made pursuant to
Section 1 or Section 2 of this Article VII that the claimant is entitled to
indemnification, the Corporation shall be bound by such determination in any
judicial proceeding commenced pursuant to Section 4 of this Article VII. The
Corporation shall be precluded from
32
asserting in any judicial proceeding commenced pursuant to Section 4 of this
Article VII that the procedures and presumptions of this Article VII are not
valid, binding and enforceable and shall stipulate in such proceeding that the
Corporation is bound by all the provisions of this Article VII.
Section 7. Remedy Not Exclusive. The right to indemnification and the payment
of expenses incurred in defending a proceeding in advance of its final
disposition conferred in this Article VII shall not be exclusive of any other
right which any person may have or hereafter acquire under any statute,
provision of the Certificate of Incorporation, the By-Laws, agreement, policy,
vote of stockholders or Disinterested Directors or otherwise. No repeal or
modification of this Article VII shall in any way diminish or adversely affect
the rights of any director, officer, employee or agent of the Corporation
hereunder in respect of any occurrence or matter arising prior to any such
repeal or modification. The provisions of this Article VII shall not be deemed
to preclude the indemnification of any person who is not specified in this
Article VII but whom the Corporation has the power or obligation to indemnify
under the provisions of the DGCL or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain insurance, at
its expense, to protect itself and any director, officer, employee or agent of
the Corporation or another corporation, partnership, joint venture, trust or
other enterprise against any expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such
expense, liability or loss under the DGCL. To the extent that the Corporation
maintains any policy or policies providing such insurance, each such director
or officer, and each such employee or agent to which rights to indemnification
have been granted as provided in Section 9 of this Article VII, shall be
33
covered by such policy or policies in accordance with its or their terms to
the maximum extent of the coverage thereunder for any such director, officer,
employee or agent.
Section 9. Employees and Agents. The Corporation may, to the extent authorized
from time to time by the Board of Directors, grant rights to indemnification,
and, subject to applicable law, rights to be paid by the Corporation the
expenses incurred in defending any proceeding in advance of its final
disposition, to any employee or agent of the Corporation to the fullest extent
of the provisions of this Article VII with respect to the indemnification and
advancement of expenses of directors and officers of the Corporation.
Section 10. Savings Clause. If any provision or provisions of this Article VII
shall be held to be invalid, illegal or unenforceable for any reason
whatsoever: (a) the validity, legality and enforceability of the remaining
provisions of this Article VII (including, without limitation, each portion of
any paragraph of this Article VII containing any such provision held to be
invalid, illegal or unenforceable, that is not itself held to be invalid,
illegal or unenforceable) shall not in any way be affected or impaired
thereby; and (b) to the fullest extent possible, the provisions of this
Article VII (including, without limitation, each such portion of any paragraph
of this Article VII containing any such provision held to be invalid, illegal
or unenforceable) shall be construed so as to give effect to the intent
manifested by the provision held invalid, illegal or unenforceable.
Section 11. Definitions. For purposes of this Article VII:
(a) references to "the Corporation" shall include, in addition to the
resulting corporation, any constituent corporation (including any constituent
of a
34
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 or other enterprise shall stand in the same position
under the provisions of this Article VII 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;
(b) the term "another enterprise" as used in this Article VII 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;
(c) references to "fines" shall include any excise taxes assessed on
a person with respect to an employee benefit plan;
(d) references to "serving at the request of the Corporation" shall
include, among other matters, 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;
(e) 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
35
employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the Corporation" as referred to
in this Article VII;
(f) "Disinterested Director" shall mean a director of the Corporation
who is not and was not a party to the matter in respect of which
indemnification is sought by the claimant; and
(g) "Independent Counsel" shall mean a law firm, a member of a law
firm, or an independent practitioner, that is experienced in matters of
corporation law of the jurisdiction in which the Corporation was domiciled at
the time the subject matter of the proceedings first occurred or was made
known to the Disinterested Directors and shall include any person who, under
the applicable standards of professional conduct then prevailing, would not
have a conflict of interest in representing either the Corporation or the
claimant in an action to determine the claimant's rights under this Article
VII.
Section 12. Notices. Any notice, request or other communication required or
permitted to be given to or made by the Corporation under this Article VII
shall be in writing and either delivered in person or sent by telecopy, telex,
telegram, overnight mail or courier service, or certified or registered mail,
postage prepaid, return receipt requested, to the Secretary of the Corporation
or to the claimant at the address or facsimile number provided to the
Corporation and shall be effective only upon receipt by the Secretary or the
claimant, as the case may be.
Section 13. Limitation on Indemnification. Notwithstanding anything contained
in this Article VII to the contrary, except for proceedings to enforce rights
to indemnification
36
(which shall be governed by Section 3 of this Article VII),
the Corporation shall not be obligated to indemnify any director or officer
(or his or her heirs, executors or personal or legal representatives) or
advance expenses in connection with a proceeding (or part thereof) initiated
by such person unless such proceeding (or part thereof) was authorized or
consented to by the Board of Directors of the Corporation pursuant to Section
3 of this Article VII.
ARTICLE VIII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the requirements of the DGCL and the provisions of the Certificate
of Incorporation, if any, may be declared by the Board of Directors out of
funds legally available therefor at any regular or special meeting of the
Board of Directors (or any action by written consent in lieu thereof in
accordance with these By-laws). Dividends may be paid in cash, in property or
in shares of the Corporation's capital stock. Before payment of any dividend,
there may be set aside out of any funds of the Corporation available for
dividends such sum or sums as the Board of Directors from time to time, in its
absolute discretion, deems proper as a reserve or reserves to meet
contingencies, or for purchasing any of the shares of capital stock, warrants,
rights, options, bonds, debentures, notes, scrip or other securities or
evidences of indebtedness of the Corporation, 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.
37
Section 2. Disbursements. All checks, drafts or demands for money and notes of
the Corporation shall be signed, endorsed or accepted in the name of the
Corporation by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The corporate seal shall have inscribed thereon the
name of the Corporation, the year of its organization and the words "Corporate
Seal, Delaware". The seal may be used by causing it or a facsimile thereof to
be impressed or affixed or reproduced or otherwise.
Section 5. Execution of Contracts, Deeds, Etc. The Board of Directors may
authorize any officer or officers, agent or agents, in the name and on behalf
of the Corporation to enter into or execute and deliver any and all deeds,
bonds, mortgages, contracts and other obligations or instruments, and such
authority may be general or confined to specific instances.
Section 6. Reliance upon Books, Reports and Records. Each director, each
member of any committee designated by the Board of Directors, and each officer
of the Corporation shall, in the performance of his or her duties, be fully
protected in relying in good faith upon the books of account or other records
of the Corporation and upon such information, opinions, reports or statements
presented to the Corporation by any of its officers or employees, or
committees of the Board of Directors so designated, or by any other person as
to matters which such director or officer reasonably believes are within
38
such other person's professional or expert competence and who has been
selected with reasonable care by or on behalf of the Corporation.
SECTION 7. Time Periods. In applying any provision of these By-laws which
requires that an act be done or not be done a specified number of days prior
to an event or that an act be done during a period of a specified number of
days prior to an event, calendar days shall be used, the day of the doing of
the act shall be excluded, and the day of the event shall be included.
ARTICLE IX
AMENDMENTS
Section 1. Amendments. These By-laws may be repealed, altered, amended or
rescinded, in whole or in part, or new By-laws may be adopted by either the
affirmative vote of the holders of sixty-six and two-thirds percent (66 2/3%)
of the outstanding capital stock of the Corporation entitled to vote thereon
or by a majority of the entire Board of Directors.
Section 2. Entire Board of Directors. As used in this Article IX and in these
By-laws generally, the term "entire Board of Directors" means the total number
of directors which the Corporation would have if there were no vacancies.
Adopted as of: January 10, 2003
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