EXHIBIT 3.2
RESORTQUEST INTERNATIONAL, INC.
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AMENDED BYLAWS
AS OF FEBRUARY 10, 1999
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ARTICLE I
OFFICES
Section 1.01. Registered Office. The registered office of ResortQuest
International, Inc. (hereinafter referred to as the "Corporation") shall be in
the City of Wilmington, County of New Castle, State of Delaware.
Section 1.02. Additional Offices. The Corporation may also have offices
at such other places, both within and outside the State of Delaware, as the
Board of Directors may from time to time determine or as the business of the
Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
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Section 2.01. Time and Place. All meetings of stockholders for the
election of Directors shall be held at such time and place, either within or
outside the State of Delaware, as shall be designated from time to time by the
Board of Directors and stated in the notice of the meeting or in a duly executed
waiver of notice of the meeting. Meetings of stockholders for any other purpose
may be held at such time and place either within or outside the State of
Delaware as shall be stated in the notice of the meeting or in a duly executed
waiver of notice of the meeting.
Section 2.02. Annual Meeting. Annual meetings of stockholders shall be
held for the purpose of electing a Board of Directors and transacting such other
business as may properly be brought before the meeting.
Section 2.03. Notice of Annual Meeting. Written notice of the annual
meeting, stating the place, date and time of such annual meeting, shall be given
to each stockholder entitled to vote at such meeting not less than ten (10)
(unless a longer period is required by law) nor more than sixty (60) days prior
to the meeting.
Section 2.04. Special Meeting. Special meetings of the stockholders, for
any purpose or purposes, unless otherwise prescribed by statute or by the
Certificate of Incorporation, may be called by the Chairman of the Board, if
any, or, if the Chairman is not present (or, if there is none), by the President
and shall be called by the President or Secretary at the request in writing of a
majority of the Board of Directors. Such request shall state the purpose or
purposes of the
proposed meeting. The person calling such meeting shall cause notice of the
meeting to be given in accordance with the provisions of Section 2.05 of this
Article II and of Article V.
This Section 2.04 may be altered, amended or repealed or a new provision
adopted by the stockholders at any regular meeting of the stockholders or at any
special meeting of the stockholders, if notice of such proposed alteration,
amendment repeal or adoption of a new provision be contained in the notice of
such special meeting, only upon the affirmative vote of the holders of sixty-six
and two-thirds percent (66 2/3%) of the voting stock of the Corporation.
Section 2.05. Notice of Special Meeting. Written notice of a special
meeting, stating the place, date and time of such special meeting and the
purpose or purposes for which the meeting is called, shall be delivered either
personally or mailed to his or her last address to each stockholder not less
than ten (10) (unless a longer period is required by law) nor more than sixty
(60) days prior to the meeting.
Section 2.06. List of Stockholders. The officer in charge of the stock
ledger of the Corporation or the transfer agent shall prepare and make, at least
ten (10) days before every meeting of stockholders, a complete list of the
stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered
in the name of each stockholder. Such list shall be open to the examination of
any stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten (10) days prior to the meeting, at
a place within the city where the meeting is to be held. Such place, if other
than the place of the meeting, shall be specified in the notice of the meeting.
The list shall also be produced and kept at the time and place of the meeting
during the whole time of the meeting and may be inspected by any stockholder who
is present.
Section 2.07. Presiding Officer. Meetings of stockholders shall be
presided over by the Chairman of the Board, if any, or if the Chairman is not
present (or if there is none), by the President, or, if the President is not
present, by a Vice President, or, if a Vice President is not present, by such
person who may have been chosen by the Board of Directors, or, if none of such
persons is present, by a Chairman to be chosen by the stockholders owning a
majority of the shares of capital stock of the Corporation issued and
outstanding and entitled to vote at the meeting and who are present in person or
represented by proxy. The Secretary of the Corporation, or, if the Secretary is
not present, an Assistant Secretary, or, if an Assistant Secretary is not
present, such person as may be chosen by the Board of Directors, shall act as
secretary of meetings of stockholders, or, if none of such persons is present,
the stockholders owning a majority of the shares of capital stock of the
Corporation issued and outstanding and entitled to vote at the meeting and who
are present in person or represented by proxy shall choose any person present to
act as secretary of the meeting.
Section 2.08. Quorum and Adjournments. The holders of a majority of the
shares of capital stock of the Corporation issued and outstanding and entitled
to vote at stockholders meetings, present in person or represented by proxy,
shall be necessary to, and shall constitute a
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quorum for, the transaction of business at all meetings of the stockholders,
except as otherwise provided by statute or by the Certificate of Incorporation.
The stockholders present in person or represented by proxy at a duly organized
meeting may continue to do business until final adjournment of such meeting
whether on the same day or on a later day, notwithstanding the withdrawal of
enough stockholders to leave less than a quorum. If a meeting cannot be
organized because a quorum has not attended, or even if a quorum shall be
present or represented at any meeting of the stockholders, the stockholders
entitled to vote at such meeting present in person or represented by proxy may
adjourn the meeting from time to time; provided, however, that if the holders of
any class of stock of the Corporation are entitled to vote separately as a class
upon any matter at such meeting, any adjournment of the meeting in respect of
action of such class upon such matter shall be determined by the holders of a
majority of the shares of such class present in person or represented by proxy
and entitled to vote at such meeting, until a quorum shall be present or
represented. Notice of the adjourned meeting need not be given if the time and
place of the adjourned meeting are announced at the meeting at which the
adjournment is taken. At any adjourned meeting at which a quorum is present in
person or represented by proxy of any class of stock entitled to vote separately
as a class, as the case may be, any business may be transacted which might have
been transacted at the meeting as originally called. If the adjournment is for
more than thirty (30) days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be
given to each stockholder of record entitled to vote at such meeting.
Section 2.09. Voting.
(a) At any meeting of stockholders, every stockholder having the right
to vote shall be entitled to vote in person or by proxy, but no such proxy shall
be voted or acted upon after three (3) years from its date, unless the proxy
provides for a longer period. Except as otherwise provided by law or the
Certificate of Incorporation, each stockholder of record shall be entitled to
one (1) vote for each share of capital stock registered in his or her name on
the books of the Corporation.
(b) At a meeting at which a quorum is present, all elections of
Directors shall be determined by a plurality vote, and, except as otherwise
provided by law or the Certificate of Incorporation, all other matters shall be
determined by a vote of a majority of the shares present in person or
represented by proxy and entitled to vote on such other matters.
Section 2.10. Inspectors. When required by law or directed by the
presiding officer or upon the demand of any stockholder entitled to vote, but
not otherwise, the polls shall be opened and closed, the proxies and ballots
shall be received and taken in charge, and all questions touching the
qualification of voters, the validity of proxies and the acceptance or rejection
of votes shall be decided at any meeting of the stockholders by two or more
inspectors who may be appointed by the Board of Directors before the meeting, or
if not so appointed, shall be appointed by the presiding officer at the meeting.
If any person so appointed fails to appear or act, the vacancy may be filled by
appointment in like manner.
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Section 2.11. Consent. Unless otherwise provided in the Certificate of
Incorporation, any action required or permitted by law or the Certificate of
Incorporation to be taken at any meeting of the stockholders may be taken
without a meeting, without prior notice to stockholders and without a vote, if a
written consent, setting forth the action so taken, shall be signed by the
holders of outstanding stock having not less than the minimum number of votes
that would be necessary to authorize or take such action at a meeting at which
all shares entitled to vote on such action were present or represented by proxy
and voted.
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 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. Any
stockholder of record seeking to have the stockholders authorize or take
corporate action by written consent shall, by written notice to the Secretary,
request the Board of Directors to fix a record date. The Board of Directors
shall promptly, but in all events within ten (10) days after the date on which
such a request is received, adopt a resolution fixing the record date. If no
record date has been fixed by the Board of Directors within ten (10) days of the
date on which such a request is received, 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
applicable law, shall be the first date on which a signed written consent
setting forth the action taken or proposed to be taken is delivered to the
Corporation by delivery to its registered office in the State of Delaware, its
principal place of business, or an officer or agent of the Corporation having
custody of the book in which proceedings of meetings of stockholders are
recorded, to the attention of the Secretary of the Corporation. Delivery shall
be by hand or by certified or registered mail, return receipt requested. If no
record date has been fixed by the Board of Directors and prior action by the
Board of Directors is required by applicable 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 date on which the
Board of Directors adopts the resolution taking such prior action.
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In the event of the delivery to the Corporation of a written consent or
consents purporting to authorize or take corporate action and/or related
revocations (each such written consent and any revocation thereof is referred to
in this Section 2.11 as a "Consent"), the Secretary of the Corporation shall
provide for the safekeeping of such Consents and shall as soon as practicable
thereafter conduct such reasonable investigation as he or she deems necessary or
appropriate for the purpose of ascertaining the validity of such Consents and
all matters incident thereto, including, without limitation, whether the holders
of shares having the requisite voting power to authorize or take the action
specified in the Consents have given consent; provided, however, that if the
corporate action to which the Consents relate is the removal or election of one
or more members of the board, the Secretary of the Corporation shall designate
an independent, qualified inspector with respect to such Consents and such
inspector shall discharge the functions of the Secretary of the Corporation
under this Section 2.11. If after such investigation the Secretary or the
inspector (as the case may be) shall determine that any action purportedly taken
by such Consents has been validly taken, the fact shall be certified on the
records of the Corporation kept for the purpose of recording the proceedings of
meetings of the stockholders and the Consents shall be filed with such records.
Prompt notice of the taking of the corporate action without a meeting by less
than unanimous written consent shall be given to those stockholders who have not
so consented in writing.
In conducting the investigation required by this Section 2.11, the
Secretary or the inspector may, at the expense of the Corporation, retain to
assist them special legal counsel, any other necessary or appropriate
professional advisors, and such other personnel as they deem necessary or
appropriate.
This Section 2.11 may be altered, amended or repealed or a new provision
adopted by the stockholders at any regular meeting of the stockholders or at any
special meeting of the stockholders, if notice of such proposed alteration,
amendment, repeal or adoption of a new provision be contained in the notice of
such special meeting, only upon the affirmative vote of the holders of sixty-six
and two-thirds percent (66 2/3%) of the voting stock of the Corporation.
Section 2.12. Proposed Business at 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 meting 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 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.
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.
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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 date
of the annual meeting; provided, however, that in the event that less than
seventy (70) days' notice or prior public disclosure of the date of the annual
meeting is given or made to stockholders, 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 meting of stockholders
except business brought before the annual meeting in accordance with the
procedures set forth in this Section; provided, however, that, once business has
been properly brought before the annual meeting in accordance with such
procedures, nothing in this Section shall be deemed to preclude discussion by
any stockholder of any such business. If the Chairman of an annual meeting
determines that business was not properly brought before the annual meeting in
accordance with the foregoing procedures, the Chairman shall declare to the
meeting that the business was not properly brought before the meeting and such
business shall not be transacted.
This Section 2.12 may be altered, amended or repealed or a new provision
adopted by the stockholders at any regular meeting of the stockholders or at any
special meeting of the stockholders, if notice of such proposed alteration,
amendment, repeal or adoption of a new provision be contained in the notice of
such special meeting, only upon the affirmative vote of the holders of sixty-six
and two-thirds percent (66 2/3%) of the voting stock of the Corporation.
ARTICLE III
DIRECTORS
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Section 3.01. Number and Tenure. There shall be such number of Directors,
no fewer than one (1), as shall from time to time be fixed by the Board of
Directors at the annual meeting
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or at any special meeting called for such purpose. The Directors shall be
elected at the annual meeting of the stockholders, except for initial Directors
named in the Certificate of Incorporation or elected by the incorporator, and
except as provided in Section 3.03 of this Article, and each Director elected
shall hold office until his successor is elected and shall qualify or until
their earlier resignation or removal. Directors need not be stockholders.
Section 3.02. 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 Bylaws
with respect to the filling of vacancies on the Board of Directors. Nominations
of persons for election to the Board of Directors may be made at any annual
meeting of stockholders, (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 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.
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
not less than sixty (60) days nor more than ninety (90) days prior to the date
of the annual meeting; provided, however, that in the event that less than
seventy (70) days' notice or prior public disclosure of the date of the annual
meeting is given or made to stockholders, 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 (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 filing 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
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representation that such stockholder intends to appear in person or by proxy at
the annual meeting to nominate the persons named in his notice and (v) any other
information relating to such stockholder that would be required to be disclosed
in a proxy statement or other filing 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. If
the Chairman of the annual meeting determines that a nomination was not made in
accordance with the foregoing procedures, the Chairman shall declare to the
meeting that the nomination was defective and such defective nomination shall be
disregarded.
This Section 3.02 may be altered, amended or repealed or a new provision
adopted by the stockholders at any regular meeting of the stockholders or at any
special meeting of the stockholders, if notice of such proposed alteration,
amendment, repeal or adoption of a new provision be contained in the notice of
such special meeting, only upon the affirmative vote of the holders of sixty-six
and two-thirds percent (66 2/3%) of the voting stock of the Corporation.
Section 3.03. Vacancies. If any vacancies occur on the Board of
Directors, or if any new Directorships are created, they shall be filled by a
majority of the Directors then in office, though less than a quorum, or by a
sole remaining Director. Each Director so chosen shall hold office until the
next annual election of Directors and until his or her successor is duly elected
and shall qualify. If there are no Directors in office, any officer or
stockholder may call a special meeting of stockholders in accordance with the
provisions of the Certificate of Incorporation or these Bylaws, at which meeting
such vacancies shall be filled.
Section 3.04. Resignation. Any Director may resign at any time by giving
written notice to the Chairman of the Board, the President or the Secretary of
the Corporation, or, in the absence of all of the foregoing, by notice to any
other Director or officer of the Corporation. Unless otherwise specified in such
written notice, a resignation shall take effect upon delivery to the designated
Director or officer. It shall not be necessary for a resignation to be accepted
before it becomes effective.
Section 3.05. Place of Meetings. The Board of Directors may hold
meetings, both regular and special, either within or outside the State of
Delaware.
Section 3.06. Annual Meeting. Unless otherwise agreed by the newly
elected Directors, the annual meeting of each newly elected Board of Directors
shall be held immediately following the annual meeting of stockholders, and no
notice of such meeting to either incumbent or newly elected Directors shall be
necessary.
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Section 3.07. Regular Meetings. Regular meetings of the Board of
Directors may be held without notice, at such time and place as may from time to
time be determined by the Board of Directors. A copy of every resolution fixing
or changing the time or place of regular meetings shall be mailed to every
Director at least five days before the first meeting held pursuant thereto.
Section 3.08. Special Meetings. Special Meetings of the Board of
Directors may be called by the Chairman of the Board or the President on at
least (1) day's actual notice to each Director, if such Special Meeting is to be
conducted by means of conference telephone or similar communications equipment
in accordance with Section 3.12, and otherwise, upon two (2) days' actual notice
if such notice is delivered personally or sent by telegram. Special Meetings
shall be called by the Chairman of the Board or the President in like manner and
on like notice on the written request of one-half or more of the Directors then
in office. The purpose of a Special Meeting of the Board of Directors need not
be stated in the notice of such meeting. Any and all business other than an
amendment of these Bylaws may be transacted at any special meeting, and an
amendment of these Bylaws may be acted upon if the notice of the meeting shall
have stated that the amendment of these Bylaws is one of the purposes of the
meeting. At any meeting at which every Director shall be present, even though
without any notice, any business may be transacted, including the amendment of
these Bylaws.
Section 3.09. Quorum and Adjournments. Unless otherwise provided by the
Certificate of Incorporation, at all meetings of the Board of Directors,
one-half of the total number of Directors shall constitute a quorum for the
transaction of business; provided, however, that when the Board of Directors
consists of one (1) Director, then one (1) Director shall constitute a quorum.
If a quorum is not present at any meeting of the Board of Directors, the
Directors present may adjourn the meeting, from time to time, without notice
other than announcement at the meeting, until a quorum shall be present.
Section 3.10. Presiding Officer. Meetings of the Board of Directors shall
be presided over by the Chairman of the Board of Directors, if any, or if the
Chairman is not present (or if there is none), by the President, or, if the
President is not present, by such person as the Board of Directors may appoint
for the purpose of presiding at the meeting from which the President is absent.
Section 3.11. Action by Consent. Unless otherwise restricted by the
Certificate of Incorporation or these Bylaws, any action required or permitted
to be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting if all members of the Board of Directors or
committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board of Directors or
committee. Such consent shall have the same force and effect as the unanimous
vote of the Board of Directors.
Section 3.12. Telephone Meetings. Members of the Board of Directors, or
any committee designated by the Board of Directors, may participate in a meeting
of the Board of
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Directors, or any committee, by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
Section 3.13. Compensation. The Board of Directors, by the affirmative
vote of a majority of the Directors then in office and irrespective of the
personal interest of any Director, shall have authority to establish reasonable
compensation for Directors for their services as such and may, in addition,
authorize reimbursement of any reasonable expenses incurred by Directors in
connection with their duties.
ARTICLE IV
COMMITTEES
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Section 4.01. Committees of Directors. The Board of Directors may, by
resolution passed by a majority of the whole Board of Directors, designate one
(1) or more committees, each committee to consist of one (1) or more Directors
of the Corporation. The Board of Directors may designate one (1) or more persons
who are not Directors as additional members of any committee, but such persons
shall be nonvoting members of such committee. The Board of Directors may
designate one (1) or more Directors as alternate members of any committee, who
may replace any absent or disqualified member at any meeting of the committee.
In the absence or disqualification of a member of a committee, the member or
members of the committee 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 such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the Board of Directors,
shall have and may exercise all the powers and authority of the Board of
Directors in the management of the business and affairs of the Corporation, may
authorize the seal of the Corporation to be affixed to all papers that may
require it, and may adopt an agreement of merger or consolidation unless
otherwise prohibited by the Delaware General Corporation Law; but no such
committee shall have power or authority to amend the Certificate of
Incorporation, recommend to the stockholders the sale, lease or exchange of all
or substantially all of the Corporation's property and assets, recommend to the
stockholders a dissolution of the Corporation or a revocation of a dissolution,
elect or remove officers or Directors, or amend these Bylaws of the Corporation;
and, unless the resolution or the Certificate of Incorporation expressly so
provides, no such committee shall have the power or authority to declare a
dividend or to authorize the issuance of stock. Such committee or committees
shall have such name or names as may be determined from time to time by
resolution adopted by the Board of Directors.
Section 4.02. Minutes of Committee Meetings. Unless otherwise provided in
the resolution of the Board of Directors establishing such committee, each
committee shall keep minutes of action taken by it and file the same with the
Secretary of the Corporation.
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Section 4.03. Quorum. A majority of the number of Directors constituting
any committee shall constitute a quorum for the transaction of business, and the
affirmative vote of such Directors present at the meeting shall be required for
any action of the committee; provided, however, that when a committee of one (1)
member is authorized under the provisions of Section 4.01 of this Article, such
one (1) member shall constitute a quorum.
Section 4.04. Vacancies, Changes and Discharge. The Board of Directors
shall have the power at any time to fill vacancies in, to change the membership
of and to discharge any committee.
Section 4.05. Compensation. The Board of Directors, by the affirmative
vote of a majority of the Directors then in office and irrespective of the
personal interest of any Director, shall have authority to establish reasonable
compensation for committee members for their services as such and may, in
addition, authorize reimbursement of any reasonable expenses incurred by
committee members in connection with their duties.
ARTICLE V
NOTICES
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Section 5.01. Form and Delivery.
(a) Whenever, under the provisions of law, the Certificate of
Incorporation or these Bylaws, notice is required to be given to any
stockholder, it shall not be construed to mean personal notice unless otherwise
specifically provided, but such notice may be given in writing, by mail,
telecopy, telegram or messenger addressed to such stockholder, at his or her
address as it appears on the records of the Corporation. If mailed, such notice
shall be deemed to be delivered when deposited in the United States mail, with
postage prepaid.
(b) Whenever, under the provisions of law, the Certificate of
Incorporation, or these Bylaws, notice is required to be given to any Director,
it shall not be construed to mean personal notice unless otherwise specifically
provided, but such notice may be given in writing, by mail, telecopy, telegram
or messenger addressed to such Director at the usual place of residence or
business of such Director, as in the discretion of the person giving such
notice, will be likely to be received most expeditiously by such Director. If
mailed, such notice shall be deemed to be delivered when deposited in the United
States mail, with postage prepaid.
Section 5.02. Waiver. Whenever any notice is required to be given under
the provisions of law, the Certificate of Incorporation or these Bylaws, a
written waiver of notice, signed by the person or persons entitled to said
notice, whether before or after the time for the meeting stated in such notice,
shall be deemed equivalent to such notice.
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ARTICLE VI
OFFICERS
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Section 6.01. Designations. The officers of the Corporation shall be
chosen by the Board of Directors and shall be a President and a Secretary. The
Board of Directors may also choose a Chairman of the Board, one (1) or more Vice
Presidents, a Treasurer, one (1) or more Assistant Secretaries and one (1) or
more Assistant Treasurers and other officers and agents as it shall deem
necessary or appropriate. Any officer of the Corporation shall have the
authority to affix the seal of the Corporation and to attest the affixing of the
seal by his or her signature. All officers and agents of the Corporation shall
exercise such powers and perform such duties as shall from time to time be
determined by the Board of Directors.
Section 6.02. Term of Office and Removal. The Board of Directors at its
annual meeting after each annual meeting of stockholders or at a special meeting
called for that purpose shall choose officers and agents, if any, in accordance
with the provisions of Section 6.01. Each officer of the Corporation shall hold
office until his or her successor is elected and shall qualify. Any officer or
agent elected or appointed by the Board of Directors may be removed, with or
without cause, at any time by the affirmative vote of a majority of the
Directors then in office. Any vacancy occurring in any office of the Corporation
may be filled for the unexpired portion of the term by the Board of Directors.
Section 6.03. Compensation. The salaries of all officers and agents, if
any, of the Corporation shall be fixed from time to time by the Board of
Directors, and no officer or agent shall be prevented from receiving such salary
by reason of the fact that he or she is also a Director of the Corporation.
Section 6.04. Chairman of the Board and the President. The Chairman of
the Board shall be the chief executive officer of the Corporation. If there is
no Chairman of the Board, the President shall be the chief executive officer of
the Corporation. The duties of the Chairman of the Board, and of the President
at the direction of the Chairman of the Board, shall be the following:
(i) Subject to the direction of the Board of Directors, to
have general charge of the business, affairs and property of the
Corporation, general supervision over its other officers and agents and,
in general, to perform all duties incident to the office of Chairman of
the Board (or President, as the case may be) and to see that all orders
and resolutions of the Board of Directors are carried into effect.
(ii) Unless otherwise prescribed by the Board of
Directors, to have full power and authority on behalf of the Corporation
to attend, act and vote at any meeting of security holders of other
Corporations in which the Corporation may hold securities. At such
meeting the Chairman of the Board (or the President, as the case may be)
shall possess and may exercise any and all rights and powers incident to
the ownership of such
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securities that the Corporation might have possessed and exercised if it
had been present. The Board of Directors may from time to time confer
like powers upon any other person or persons.
(iii) To preside over meetings of the stockholders and of
the Board of Directors, to call special meetings of stockholders, to be
an ex-officio member of all committees of the Board of Directors, and to
have such other duties as may from time to time be prescribed by the
Board of Directors.
Section 6.05. The Vice President. The Vice President, if any (or in the
event there be more than one (1), the Vice Presidents in the order designated,
or in the absence of any designation, in the order of their election), shall, in
the absence of the President or in the event of his or her inability or refusal
to act, perform the duties and exercise the powers of the President, and shall
generally assist the President and perform such other duties and have such other
powers as may from time to time be prescribed by the Board of Directors.
Section 6.06. The Secretary. The Secretary shall attend all meetings of
the Board of Directors and all meetings of stockholders and record all votes and
the proceedings of the meetings in a book to be kept for that purpose; and shall
perform like duties for any committees of the Board of Directors, if requested
by such committee. The Secretary shall give, or cause to be given, notice of all
meetings of stockholders and special meetings of the Board of Directors, and
shall perform such other duties as may from time to time be prescribed by the
Board of Directors or the President, under whose supervision he or she shall
act. The Secretary shall have custody of the seal of the Corporation, and the
Secretary, or any Assistant Secretary, shall have authority to affix the same to
any instrument requiring it, and, when so affixed, the seal may be attested by
the signature of the Secretary or any such Assistant Secretary.
Section 6.07. The Assistant Secretary. The Assistant Secretary, if any
(or in the event there be more than one (1), the Assistant Secretaries in the
order designated, or in the absence of any designation, 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 and shall perform such other duties and have such other
powers as may from time to time be prescribed by the Board of Directors.
Section 6.08. The Treasurer. The Treasurer, if any, shall have the
custody of the corporate funds and other valuable effects, including securities,
and shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Corporation, and shall deposit all moneys and other valuable
effects in the name and to the credit of the Corporation in such depositories as
may from time to time be designated by the Board of Directors. The Treasurer
shall disburse the funds of the Corporation as may be ordered by the Board of
Directors, taking proper vouchers for such disbursements, and shall render to
the President and the Board of Directors, at regular meetings of the board, or
whenever they may require it, an account of all of his or her transactions as
Treasurer and of the financial condition of the Corporation.
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Section 6.09. The Assistant Treasurer. The Assistant Treasurer, if any,
(or in the event there be more than one (1), the Assistant Treasurers in the
order designated, or in the absence of any designation, 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 and shall perform such other duties and have such other
powers as may from time to time be prescribed by the Board of Directors.
Section 6.10. Transfer of Authority. In case of the absence of any
officer or for any other reason that the Board of Directors deems sufficient,
the Board of Directors may transfer the powers or duties of that officer to any
other officer or to any Director or employee of the Corporation, provided a
majority of the full Board of Directors concurs.
Section 6.11. Giving of Bond by Officers. All officers of the
Corporation, if required to do so by the Board of Directors, shall furnish bonds
to the Corporation for the faithful performance of their duties, in such
penalties and with such conditions and security as the Board shall require.
ARTICLE VII
STOCK CERTIFICATES
------------------
Section 7.01. Form and Signatures. 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 Chairman of the Board, the President or a Vice President
and the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary of the Corporation, certifying the number and class (and series, if
any) of shares owned by him or her, and bearing the seal of the Corporation.
Such seal and any or all of the signatures on the certificate may be a
facsimile. In case any officer, transfer agent or registrar who has signed, or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the Corporation with the same effect as if he or she
were such officer, transfer agent or registrar at the date of issue.
Section 7.02. Registration of Transfer. Upon surrender to the Corporation
or any transfer agent of the Corporation of a certificate for shares duly
endorsed or accompanied by proper evidence of succession, assignment or
authority to transfer, it shall be the duty of the Corporation or its transfer
agent to issue a new certificate to the person entitled thereto, to cancel the
old certificate and to record the transaction upon its books.
Section 7.03. Registered Stockholders. Except as otherwise provided by
law, the Corporation shall be entitled to recognize the exclusive right of a
person who is registered on its books as the owner of shares of its capital
stock to receive dividends or other distributions, to vote as such owner, and to
hold liable for calls and assessments a person who is registered on its
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books as the owner of shares of its capital stock. The Corporation shall not be
bound to recognize any equitable, legal or other claim to or interest in such
share or shares on the part of any other person whether or not it shall have
express or other notice thereof, except as otherwise provided by law.
Section 7.04. Issuance of Certificates. No certificate shall be issued
for any share until (i) consideration for such share in the form of cash,
services rendered, personal or real property, leases of real property or a
combination thereof in an amount not less than the par value or stated capital
of such share has been received by the Corporation and (ii) the Corporation has
received a binding obligation of the subscriber or purchaser to pay the balance
of the subscription or purchase price.
Section 7.05. Lost, Stolen or Destroyed Certificates. The Board of
Directors may direct a new certificate to be issued in place of any certificate
previously issued by the Corporation alleged to have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person claiming
the certificate of stock to be lost, stolen or destroyed. When authorizing such
issue of a new certificate, the Board of Directors may, in its discretion and as
a condition precedent to the issuance thereof, require the owner of such lost,
stolen or destroyed certificate, or his or her legal representative, to
advertise the same in such manner as it shall require, and to give the
Corporation a bond in such sum, or other security in such form as it may direct,
as indemnity against any claim that may be made against the Corporation on
account of the alleged loss, theft or destruction of any such certificate or the
issuance of such new certificate.
Section 7.06. Dividends. Subject to the provisions of the Certificate of
Incorporation, the Board of Directors shall have power to declare and pay
dividends upon shares of stock of the Corporation, but only out of funds
available for the payment of dividends as provided by law.
ARTICLE VIII
INDEMNIFICATION
---------------
Section 8.01. Directors, Officers, Employees or Agents.
(a) 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 he or she is or was a Director, officer, employee or
agent 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, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him or her in connection with such action, suit or proceeding if he
or she acted in good faith and in a manner he or she reasonably believed to be
in or not opposed to the best interests of the Corporation and, with respect to
any criminal action or
15
proceeding, had no reasonable cause to believe his or her conduct was unlawful.
The termination of any action, suit or proceeding by judgment, order,
settlement, conviction or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner that he or she reasonably believed to be in or not opposed
to the best interests of the Corporation and, with respect to any criminal
action or proceeding, had reasonable cause to believe that his or her conduct
was unlawful.
(b) 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 he or she is or was a Director, officer,
employee or agent 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 against expenses
(including attorneys' fees) actually and reasonably incurred by him or her in
connection with the defense or settlement of such action or suit if he or she
acted in good faith and in a manner he or she 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 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.
(c) To the extent that a Director, officer, employee or agent of the
Corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (a) and (b) of this
Article VIII, or in defense of any claim, issue or matter therein, he or she
shall be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him or her in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this Article
VIII (unless ordered by a court) shall be made by the Corporation only as
authorized in the specific case upon a determination that indemnification of the
Director, officer, employee or agent is proper in the circumstances because he
or she has met the applicable standard of conduct set forth in subsections (a)
and (b) of this Article VIII. Such determination shall be made (1) by the Board
of Directors by a majority vote of a quorum consisting of Directors who were not
parties to such action, suit or proceeding, or (2) if such a quorum is not
obtainable, or, even if obtainable a quorum of disinterested Directors so
directs, by independent legal counsel in a written opinion or (3) by the
stockholders.
(e) Expenses incurred by an officer or Director in defending a civil
or criminal action, suit or proceeding may 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 he or she is not entitled to be
16
indemnified by the Corporation as authorized in this Article. Such expenses
incurred by other employees and agents may be so paid upon such terms and
conditions, if any, as the Board of Directors deems appropriate.
(f) The indemnification and advancement of expenses provided by these
Bylaws shall not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any agreement,
vote of stockholders or disinterested Directors or otherwise, both as to action
in his or her official capacity and as to action in another capacity while
holding such office.
(g) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a Director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such person.
(h) The Corporation may purchase and maintain insurance on behalf of
any person who is or was a director, officer, employee or agent 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 against any liability asserted against him or
her and incurred by him or her in any such capacity, or arising out of his or
her status as such, whether or not the Corporation would have the power to
indemnify him or her against such liability under this Article.
ARTICLE IX
GENERAL PROVISIONS
------------------
Section 9.01. Fiscal Year. The fiscal year of the Corporation shall be as
determined from time to time by the Board of Directors.
Section 9.02. Seal. The corporate seal shall have inscribed thereon the
name of the Corporation, the year of its incorporation and the words "Corporate
Seal" and "Delaware." The seal or any facsimile thereof may be, but need not be,
unless required by law, impressed or affixed to any instrument executed by an
officer of the Corporation.
Section 9.03. Checks, Notes, Etc. All checks, drafts, bills of exchange,
acceptances, notes or other obligations or orders for the payment of money shall
be signed and, if so required by the Board of Directors, countersigned by such
officers of the corporation and/or other persons as the Board of Directors from
time to time shall designate.
Checks, drafts, bills of exchange, acceptance notes, obligations and
orders for the payment of money made payable to the Corporation may be endorsed
for deposit to the credit of the Corporation with a duly authorized depository
by the Treasurer and/or such other officers or
17
persons as the Board of Directors from time to time may designate.
Section 9.04. Loans. No loans and no renewals of any loans shall be
contracted on behalf of the Corporation except as authorized by the Board of
Directors. When authorized to do so, any officer or agent of the Corporation may
effect loans and advances for the Corporation from any bank, trust company or
other institution or from any firm, corporation or individual, and for such
other evidences of indebtedness of the Corporation. When authorized so to do,
any officer or agent of the Corporation may pledge, hypothecate or transfer, as
security for the payment of any and all loans, advances, indebtedness and
liabilities of the Corporation, and any and all stocks, securities and other
personal property at any time held by the Corporation, and to that end may
endorse, assign and deliver the same. Such authority may be general or confined
to specific instances.
Section 9.05. Contracts. Except as otherwise provided in these Bylaws or
as otherwise directed by the Board of Directors, the President or any Vice
President shall be authorized to execute and deliver, in the name and on behalf
of the Corporation, all agreements, bonds, contracts, deeds, mortgages and other
instruments, either for the Corporation's own account or in a fiduciary or other
capacity, and the seal of the Corporation, if appropriate, shall be affixed
thereto by any of such officers or the Secretary or an Assistant Secretary. The
Board of Directors, the President or any Vice President designated by the Board
of Directors may authorize any other officer, employee or agent to execute and
deliver, in the name and on behalf of the Corporation, agreements, bonds,
contracts, deeds, mortgages and other instruments, either for the Corporation's
own account or in a fiduciary or other capacity and, if appropriate, to affix
the seal of the Corporation thereto. The grant of such authority by the Board or
any such officer may be general or confined to specific instances.
ARTICLE X
AMENDMENTS
----------
Section 10.01. These Bylaws may be altered, amended or repealed or new
Bylaws may be adopted by the stockholders or by the Board of Directors, to the
extent that such power is conferred upon the Board of Directors by the
Certificate of Incorporation, at any regular meeting of the stockholders or of
the Board of Directors or at any special meeting of the stockholders or of the
Board of Directors if notice of such proposed alteration, amendment, repeal or
adoption of new Bylaws be contained in the notice of such special meeting.
18