Exhibit 3.2
AMENDED AND RESTATED
BYLAWS
OF
RADIO ONE, INC.
(AS OF MAY 5, 1999)
ARTICLE I - OFFICES
Section 1. Registered Office. The registered office in the
State of Delaware shall be at 9 East Loockerman Street, in the City of Dover,
County of Kent. The name of the corporation's registered agent at such address
shall be National Registered Agents, Inc. The registered office or registered
agent of the corporation may be changed from time to time by action of the board
of directors on the filing of a certificate or certificates as required by law.
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 or the business of the
corporation may require.
ARTICLE II - MEETINGS OF STOCKHOLDERS
Section 1. Place and Time of Meetings. An annual meeting of
the stockholders shall be held each year, beginning in the year 1998, prior to
the last day of April. At such meeting, the stockholders shall elect the
directors of the corporation and conduct such other business as may come before
the meeting. The time and place of the annual meeting shall be determined by the
board of directors. Special meetings of the stockholders for any other purpose
may be held at such time and place, within or without the State of Delaware, as
shall be stated in the notice of the meeting or in a duly executed waiver of
notice thereof. Special meetings of the stockholders may be called by the
president or the chairman of the board for any purpose and shall be called by
the secretary if directed by the board of directors.
Section 2. Notice. Whenever stockholders are required or
permitted to take action at a meeting, written or printed notice of every annual
or special meeting of the stockholders, stating the place, date, time, and, in
the case of special meetings, the purpose or purposes, of such meeting, shall be
given to each stockholder entitled to vote at such meeting not less than l0 nor
more than 60 days before the date of the meeting. All such notices shall be
delivered, either personally or by mail, by or at the direction of the board of
directors, the chairman of the board, the chief executive officer, the president
or the secretary, and if mailed, such notice shall be deemed to be delivered
when deposited in the United States mail with postage prepaid and addressed to
the stockholder at his or her address as it appears on the records of the
corporation.
Section 3. Stockholders List. The officer having charge of the
stock ledger of the corporation shall make, at least l0 days before every
meeting of the stockholders, a complete list arranged in alphabetical order of
the stockholders entitled to vote at such meeting, specifying the address of 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 l0 days prior
to the meeting, either at a place within the city where the meeting is to be
held, which place shall be specified in the notice of the meeting or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
Section 4. Quorum. The presence of stockholders entitled to
cast at least a majority of the votes that all stockholders are entitled to cast
on a matter to be acted upon at a meeting of the stockholders shall constitute a
quorum for the purposes of consideration and action on the matter, except as
otherwise provided by statute or by the certificate of incorporation. If a
quorum is not present, the holders of the shares present in person or
represented by proxy at the meeting and entitled to vote thereat shall have the
power, by the affirmative vote of the holders of a majority of such shares, to
adjourn the meeting to another time or place. Unless the adjournment is for more
than thirty days or unless a new record date is set for the adjourned meeting,
no notice of the adjourned meeting need be given to any stockholder, provided
that the time and place of the adjourned meeting were announced at the meeting
at which the adjournment was taken. At the adjourned meeting, the corporation
may transact any business which might have been transacted at the original
meeting.
Section 5. Vote Required. When a quorum is present or
represented by proxy at any meeting, the vote of a majority of the votes cast by
all stockholders entitled to vote and, if any stockholders are entitled to vote
as a class, the vote of a majority of the votes cast by the stockholders
entitled to vote as a class, whether such stockholders are present in person or
represented by proxy at the meeting, shall be the act of the stockholders,
unless the question is one upon which by express provisions of an applicable
statute or of the certificate of incorporation a different vote is required, in
which case such express provision shall govern and control the decision of such
question.
Section 6. Voting Rights. Except as otherwise provided by the
Delaware General Corporation Law or by the certificate of incorporation of the
corporation or any amendments thereto and subject to Section 3 of ARTICLE VI
hereof, each stockholder shall at every meeting of the stockholders be entitled
to one vote in person or by proxy for each share of capital stock held by such
stockholder.
Section 7. Proxies. Each stockholder entitled to vote at a
meeting of stockholders or to express consent or dissent to corporate action in
writing without a meeting may authorize another person or persons to act for him
or her by proxy, but no such proxy shall be voted or acted upon after three
years from its date, unless the proxy provides for a longer period.
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ARTICLE III - DIRECTORS
Section 1. Number, Election and Term of Office. The board of
directors shall be five (5) in number, including the Class A Directors (as
hereinafter defined); provided, however, the number of members of the board of
directors shall be increased to nine (9) at the election of Investors (as
defined in the Preferred Stockholders' Agreement (the "PSA") dated as of May 14,
1997 among Radio One, Inc., Radio One Licenses, Inc., and the other parties
thereto and the Warrantholders' Agreement (the "WA") dated as of June 6, 1995
among Radio One, Inc., Radio One Licenses, Inc. and the other parties thereto,
as amended by the First Amendment to Warrantholders' Agreement dated as of the
Closing Date (as defined in the PSA), as applicable) in accordance with, and
subject to the terms and conditions of, Section 10 of the PSA or Article VI of
the WA, as applicable (an election to increase the size of the board of
directors is referred to herein as the "Special Election"). The board of
directors shall include two directors elected by the holders of the Class A
Common Stock by class vote pursuant to the amended and restated certificate of
incorporation of the corporation (the "Class A Directors"). The directors shall
be elected at the annual meeting of stockholders, except for the Class A
Directors and except as provided in Section 3 of this ARTICLE III, and each
director elected shall hold office until the next annual meeting of stockholders
and until a successor is duly elected and qualified or until his or her death,
resignation or removal as hereinafter provided. The Class A Directors shall be
elected at each annual meeting of stockholders commencing with the annual
meeting of stockholders to be held in 2000.
Section 2. Removal and Resignation. Any director or the entire
board of directors may be removed at any time, with or without cause, by the
vote of a majority of the votes cast by all stockholders entitled to vote at an
election of directors, except that the Class A Directors may be removed only by
the vote of the holders of a majority of the shares of Class A Common Stock, and
except as otherwise provided by statute. Any director may resign at any time
upon written notice to the corporation.
Section 3. Vacancies. Vacancies and newly created
directorships resulting from any increase in the authorized number of directors
may be filled only by the vote of a majority of the votes cast by all
stockholders then entitled to vote at an election of directors at an annual or
special meeting of stockholders, and each director so chosen shall hold office
until the next annual meeting of stockholders and until a successor is duly
elected and qualified or until his or her earlier death, resignation or removal
as hereinafter provided; provided, however, that any vacancy resulting from the
resignation or removal of a Class A Director may be filled only by the vote of
the holders of a majority of the shares of Class A Common Stock; and provided,
further, that any vacancy created as a result of the Special Election shall be
filled in the manner provided for in Section 10 of the PSA or Article VI of the
WA, as applicable, and a director so elected shall continue to serve as a
director until the date on which the Special Election is no longer in effect, at
which time the number of directors constituting the board of directors of the
corporation shall decrease to such number as constituted the whole board of
directors of the corporation immediately prior to the exercise of the Special
Election.
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Section 4. Annual Meetings. The annual meeting of each newly
elected board of directors shall be held without other notice than this bylaw
immediately after, and at the same place as, the annual meeting of stockholders.
Section 5. Other Meetings and Notice. Regular meetings, other
than the annual meeting, of the board of directors may be held without notice at
such time and at such place as shall from time to time be determined by
resolution of the board. Special meetings of the board of directors may be
called by or at the request of the chairman, the chief executive officer or the
president on at least 24 hours notice to each director, either personally, by
telephone, by mail, or by telegraph; in like manner and on like notice the
secretary must call a special meeting on the written request of a majority of
directors; in like manner on like notice, the secretary must call a special
meeting on the written request of Investors holding a majority of the
outstanding Preferred Shares (as defined in the PSA); provided that any such
request made by such Investors must be called in good faith for a reasonable
business purpose.
Section 6. Quorum. A majority of the total number of directors
shall constitute a quorum for the transaction of business. The vote of a
majority of directors present at a meeting at which a quorum is present shall be
the act of the board of directors. If a quorum shall not be present at any
meeting of the board of directors, the directors present thereat may adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
Section 7. Committees. The board of directors may, by
resolution passed by a majority of the whole board, designate one or more
committees. Each committee shall consist of one or more of the directors of the
corporation, which, to the extent provided in such resolution and not otherwise
limited by statute, shall have and may exercise the powers of the board of
directors in the management and affairs of the corporation including without
limitation the power to declare a dividend and to authorize the issuance of
stock. 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 the committee. 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. Each committee shall keep regular minutes of its meetings
and report the same to the directors when required.
Section 8. Committee Rules. Each committee of the board of
directors may fix its own rules of procedure and shall hold its meetings as
provided by such rules, except as may otherwise be provided by the resolution of
the board of directors designating such committee, but in all cases the presence
of at least a majority of the members of such committee shall be necessary to
constitute a quorum. In the event that a member and that member's alternate, if
alternates are designated by the board of directors as provided in Section 7 of
this ARTICLE III, of such committee is/are absent or disqualified, 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 place of any
such absent or disqualified member.
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Section 9. Communications Equipment. Members of the board of
directors or any committee thereof may participate in and act at any meeting of
such board or committee through the use 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 the meeting pursuant to this
section shall constitute presence in person at the meeting.
Section 10. 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 members of the board 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.
ARTICLE IV - OFFICERS
Section 1. Number. The officers of the corporation shall be
elected by the board of directors and shall consist of a chairman of the board
(if the board of directors so deems advisable and elects), a president (who
shall perform the functions of the chairman of the board if none be elected),
one or more vice-presidents, a secretary, a treasurer, and such other officers
and assistant officers as may be deemed necessary or desirable by the board of
directors. Any number of offices may be held by the same person. In its
discretion, the board of directors may choose not to fill any office for any
period as it may deem advisable, except the offices of president and secretary.
Section 2. Election and Term of Office. The officers of the
corporation shall be elected annually by the board of directors at the meeting
of the board of directors held after each annual meeting of stockholders. If the
election of officers shall not be held at such meeting, such election shall be
held as soon thereafter as conveniently may be. Vacancies may be filled or new
offices created and filled at any meeting of the board of directors. Each
officer shall hold office until the next annual meeting of the board of
directors and until a successor is duly elected and qualified or until his or
her earlier death, resignation or removal as hereinafter provided.
Section 3. Removal. Any officer or agent elected by the board
of directors may be removed by the board of directors whenever in its judgment
the best interest of the corporation would be served thereby, but such removal
shall be without prejudice to the contract rights, if any, of the person so
removed.
Section 4. Vacancies. A vacancy in any office because of
death, resignation, removal, disqualification or otherwise, may be filled by the
board of directors for the unexpired portion of the term by the board of
directors then in office.
Section 5. Compensation. Compensation of all officers shall be
fixed by the board of directors, and no officer shall be prevented from
receiving such compensation by virtue of the fact that he or she is also a
director of the corporation.
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Section 6. Chairman of the Board. The chairman shall preside
at all meetings of the board of directors and all meetings of the stockholders
and shall have such other powers and perform such duties as may from time to
time be assigned to him by the board of directors.
Section 7. The Chief Executive Officer. The chief executive
officer of the corporation shall have such powers and perform such duties as are
specified in these bylaws and as may from time to time be assigned to him by the
board of directors.
The chief executive officer shall have overall management of
the business of the corporation and its subsidiaries and shall see that all
orders and resolutions of the boards of directors of the corporation and its
subsidiaries are carried into effect. The chief executive officer shall execute
bonds, mortgages and other contracts requiring a seal, under the seal of the
corporation, except where required or permitted by law to be otherwise signed
and executed and except where the signing and execution thereof shall be
expressly delegated by the board of directors to some other officer or agent of
the corporation. The chief executive officer shall have general powers of
supervision and shall be the final arbitrator of all differences among officers
of the corporation and its subsidiaries, and such decision as to any matter
affecting the corporation and its subsidiaries subject only to the boards of
directors.
Section 8. The President. The president shall have such powers
and perform such duties as are specified in these bylaws and as may from time to
time be assigned to him by the board of directors.
The president shall have general and active management of the
business of the corporation and shall see that all orders and resolutions of the
board of directors are carried into effect. The president shall execute bonds,
mortgages and other contracts requiring a seal, under the seal of the
corporation, except where required or permitted by law to be otherwise signed
and executed and except where the signing and execution thereof shall be
expressly delegated by the board of directors to some other officer or agent of
the corporation. The president shall have general powers of supervision and
shall be the final arbitrator of all differences between officers of the
corporation, and such decision as to any matter affecting the corporation
subject only to the board of directors.
Section 9. Vice Presidents. The vice-president, or if there
shall be more than one, the vice-presidents in the order determined by the board
of directors, shall, in the absence or disability of the president, perform the
duties and exercise the powers of the president and shall perform such other
duties and have such other powers as the board of directors may, from time to
time, determine or these bylaws may prescribe.
Section 10. The Secretary and Assistant Secretaries. The
secretary shall attend all meetings of the board of directors and all meetings
of the stockholders and record all the proceedings of the meetings of the
corporation and the board of directors in a book to be kept for that purpose and
shall perform like duties for the standing committees when required. The
secretary shall give, or cause to be given, notice of all meetings of the
stockholders and special meetings of the board of directors; perform such other
duties as may be prescribed by the board of directors or president, under whose
supervision he or she shall be; shall have custody of the corporate seal of the
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corporation and the secretary, or an assistant secretary, shall have authority
to affix the same to any instrument requiring it and when so affixed, it may be
attested by his or her signature or by the signature of such assistant
secretary. The board of directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by his
or her signature. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors, shall,
in the absence or disability of the secretary, perform the duties and exercise
the powers of the secretary and shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
Section 11. The Treasurer and Assistant Treasurer. The
treasurer shall have the custody of the corporate funds and securities; shall
keep full and accurate accounts of receipts and disbursements in books belonging
to the corporation; shall deposit all monies and other valuable effects in the
name and to the credit of the corporation as may be ordered by the board of
directors, taking proper vouchers for such disbursements; and shall render to
the president and the board of directors, at its regular meeting or when the
board of directors so requires, an account of the corporation. If required by
the board of directors, the treasurer shall give the corporation a bond (which
shall be rendered every six years) in such sums and with such surety or sureties
as shall be satisfactory to the board of directors for the faithful performance
of the duties of the office of treasurer and for the restoration to the
corporation, in case of death, resignation, retirement, or removal from office,
of all books, papers, vouchers, money, and other property of whatever kind in
the possession or under the control of the treasurer belonging to the
corporation. The assistant treasurer, or if there shall be more than one, the
assistant treasurers in the order determined by the board of directors, shall in
the absence or disability of the treasurer, perform the duties and exercise the
powers of the treasurer and shall perform such other duties and have such other
powers as the board of directors may from time to time prescribe.
Section 12. Other Officers, Assistant Officers and Agents.
Officers, assistant officers and agents, if any, other than those whose duties
are provided for in these bylaws, shall have such authority and perform such
duties as may from time to time be prescribed by resolution of the board of
directors.
ARTICLE V - INDEMNIFICATION OF OFFICERS, DIRECTORS AND OTHERS
Section 1. Right to Indemnification. Each person who was or is
made party or is threatened to be made a party to or is otherwise involved
(including involvement as a witness) in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (hereinafter a "proceeding"),
by reason of the fact that he or she is or was a director or officer of the
corporation or, while a director or officer of the corporation, is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to an employee benefit plan
(hereinafter, an "indemnitee"), whether the basis of such proceeding is alleged
action in an official capacity as a director or officer or in any other capacity
while serving as a director or officer, shall be indemnified and held harmless
by the corporation to the fullest extent authorized by the Delaware General
Corporation Law ("DGCL"), as the same exists or may hereafter be amended (but,
in the case of any
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such amendment, only to the extent that such amendment permits the corporation
to provide for broader indemnification rights than permitted as of the date of
these bylaws), against all expense, liability and loss (including attorneys'
fees, judgments, fines, excise taxes or penalties and amounts paid in
settlement) reasonably incurred or suffered by such indemnitee in connection
therewith and such indemnification shall continue as to an indemnitee who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the indemnitee's heirs, executors and administrators; provided,
however, that except as provided in Section 2 of this ARTICLE V with respect to
proceedings to enforce rights to indemnification, the corporation shall
indemnify any such indemnitee in connection with a proceeding (or part thereof)
initiated by such indemnitee only if such proceeding (or part thereof) was
authorized by the board of directors of the corporation. The right to
indemnification conferred in this Section 1 of this ARTICLE V shall be a
contract right and shall include the obligation of the corporation to pay the
expenses incurred in defending any such proceeding in advance of its final
disposition (hereinafter an "advance of expenses"); provided, however, that if
and to the extent that the board of directors of the corporation requires, an
advance of expenses incurred by an indemnitee in his or her capacity as a
director or officer (and not in any other capacity in which service was or is
rendered by such indemnitee, including, without limitation, service to an
employee benefit plan) shall be made only upon delivery to the corporation of an
undertaking (hereinafter an "undertaking"), by or on behalf of such indemnitee,
to repay all amounts so advanced if it shall ultimately be determined by final
judicial decision from which there is no further right to appeal (hereinafter a
"final adjudication") that such indemnitee is not entitled to be indemnified for
such expenses under this Section 1 or otherwise. The corporation may, by action
of its board of directors, provide indemnification to employees and agents of
the corporation with the same or lesser scope and effect as the foregoing
indemnification of directors and officers.
Section 2. Procedure for Indemnification. Any indemnification
of a director or officer of the corporation or advance of expenses under Section
1 of this ARTICLE V shall be made promptly, and in any event within forty-five
days (or, in the case of an advance of expenses, twenty days) upon the written
request of the director or officer. If a determination by the corporation that
the director or officer is entitled to indemnification pursuant to this ARTICLE
V is required, and the corporation fails to respond within sixty days to a
written request for indemnity, the corporation shall be deemed to have approved
the request. If the corporation denies a written request for indemnification or
advance of expenses, in whole or in part, or if payment in full pursuant to such
request is not made within forty-five days (or, in the case of an advance of
expenses, twenty days), the right to indemnification or advances as granted by
this ARTICLE V shall be enforceable by the director or officer in any court of
competent jurisdiction. Such person's costs and expenses incurred in connection
with successfully establishing his or her right to indemnification, in whole or
in part, in any such action shall also be indemnified by the corporation. It
shall be a defense to any such action (other than an action brought to enforce a
claim for the advance of expenses where the undertaking required pursuant to
Section 1 of this ARTICLE V, if any, has been tendered to the corporation) that
the claimant has not met the standards of conduct which make it permissible
under the DGCL for the corporation to indemnify the claimant for the amount
claimed, but the burden of such defense shall be on the corporation. Neither the
failure of the corporation (including its board of directors, independent legal
counsel, or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of conduct
set forth in the DGCL, nor an actual
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determination by the corporation (including its board of directors, independent
legal counsel, or its stockholders) that the claimant has not met such
applicable standard of conduct, shall be a defense to the action or create a
presumption that the claimant has not met the applicable standard of conduct.
The procedure for indemnification of other employees and agents for whom
indemnification is provided pursuant to Section 1 of this ARTICLE V shall be the
same procedure set forth in this Section 2 for directors or officers, unless
otherwise set forth in the action of the board of directors of the corporation
providing for indemnification for such employee or agent.
Section 3. Insurance. The corporation may purchase and
maintain insurance on its own behalf and on behalf of any person who is or was a
director, officer, employee or agent of the corporation 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
expense, liability or loss asserted against him or her and incurred by him or
her in any such capacity, whether or not the corporation would have the power to
indemnify such person against such expenses, liability or loss under the DGCL.
Section 4. Service for Subsidiaries. Any person serving as a
director, officer, employee or agent of another corporation, partnership,
limited liability company, joint venture or other enterprise, at least 50% of
whose equity interests are owned by the corporation (hereinafter a "subsidiary"
for purposes of this ARTICLE V) shall be conclusively presumed to be serving in
such capacity at the request of the corporation.
Section 5. Reliance. Persons who after the date of the
adoption of these bylaws become or remain directors or officers of the
corporation or who, while a director or officer of the corporation, become or
remain a director, officer, employee or agent of a subsidiary, shall be
conclusively presumed to have relied on the rights to indemnity, advance of
expenses and other rights contained in this ARTICLE V in entering into or
continuing such service. The rights to indemnification and to the advance of
expenses conferred in this ARTICLE V shall apply to claims made against an
indemnitee arising out of acts or omissions which occurred or occur both prior
and subsequent to the adoption hereof.
Section 6. Non-Exclusivity of Rights. The rights to
indemnification and to the advance of expenses conferred in this ARTICLE V shall
not be exclusive of any other right which any person may have or hereafter
acquire under these bylaws or the corporation's certificate of incorporation or
under any statute, agreement, vote of stockholders or disinterested directors or
otherwise.
Section 7. Merger or Consolidation. For purposes of this
ARTICLE V, references to "the corporation" shall include any constituent
corporation (including any constituent of a constituent) absorbed into the
corporation in a consolidation or merger which, if its separate existence had
continued, would have had power and authority to indemnify its directors,
officers, and employees or agents, so that any person who is or was a director,
officer, employee or agent of such constituent corporation, or is or was 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 this ARTICLE V with respect
to the resulting or
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surviving corporation as he or she would have with respect to such constituent
corporation if its separate existence had continued.
ARTICLE VI - CERTIFICATES OF STOCK
Section 1. Form. Subject to ARTICLE X of the certificate of
incorporation, 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
president or a vice-president, and the secretary or an assistant secretary of
the corporation, certifying the number of shares owned by him or her in the
corporation. Where a certificate is signed (l) by a transfer agent or an
assistant transfer agent other than the corporation or its employee or (2) by a
registrar, other than the corporation or its employee, the signature of any such
president, vice-president, secretary, or assistant secretary may be facsimile.
In case any officer or officers have signed a certificate or certificates, or
whose facsimile signature or signatures have been used on certificate or
certificates, shall cease to be such officer or officers of the corporation
whether because of death, resignation or otherwise before such certificate or
certificates have been delivered by the corporation, such certificate or
certificates may nevertheless be issued and delivered as though the person or
persons who signed such certificate or certificates or whose facsimile signature
or signatures have been used on such certificate or certificates had not ceased
to be such officer or officers of the corporation. All certificates for shares
shall be consecutively numbered or otherwise identified. The name of the person
to whom the shares represented thereby are issued, with the number of shares and
date of issue, shall be entered on the books of the corporation. All
certificates surrendered to the corporation for transfer shall be canceled, and
no new certificate shall be issued in replacement until the former certificate
for a like number of shares shall have been surrendered or canceled, except as
otherwise provided in Section 2 with respect to lost, stolen or destroyed
certificates.
Section 2. Lost Certificates. Subject to ARTICLE X of the
certificate of incorporation, the board of directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the corporation alleged to have been lost,
stolen, or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen, or destroyed. When
authorizing such issue of a new certificate or certificates, 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
certificates, or his or her legal representative, to give the corporation a bond
in such sum as it may direct as indemnity against any claim that may be made
against the corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
Section 3. Fixing a Record Date. The board of directors may
fix in advance a record date for the determination of stockholders entitled to
notice of, and to vote at, any meeting of stockholders and any adjournment
thereof; stockholders entitled to consent to corporate action in writing without
a meeting; stockholders entitled to receive payment of any dividend or other
distribution or allotment of rights or entitled to exercise any rights in
respect to any change, conversion or exchange of stock; or, for the purpose of
any other lawful action, which record date may not precede the date on which the
resolution fixing such record date is adopted by the board of
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directors. The record date for the determination of stockholders entitled to
notice of, and to vote at, a meeting of stockholders shall not be more than 60
days nor less than 10 days before the date of such meeting. The record date for
the determination of stockholders entitled to consent to corporate action in
writing without a meeting shall not be more than 10 days after the date upon
which the resolution fixing the record date is adopted by the board of
directors. The record date for the determination of stockholders with respect to
any other action shall not be more than 60 days before the date of such action.
If no record date is fixed: the record date for determining stockholders
entitled to notice of, and to vote at, a meeting of stockholders shall be at the
close of business on the day next preceding the day on which notice is given, or
if notice is waived, at the close of business on the day next preceding the day
on which the meeting is held; the record date for determining stockholders
entitled to consent to corporate action in writing without a meeting when no
prior action by the board of directors is required by the Delaware General
Corporation Law, shall be the first date on which a signed written consent
setting forth the action taken or proposed to be taken is delivered to the
corporation 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; and, the record date for determining stockholders with respect to any
other action shall be the close of business on the day on which the board of
directors adopts the resolution relating thereto.
ARTICLE VII - GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the
corporation, subject to the provisions of the certificate of incorporation, if
any, may be declared by the board of directors at any regular or special
meeting, pursuant to law. Dividends may be paid in cash, in property, or in
shares of the capital stock, subject to the provisions of the certificate of
incorporation. 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
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, equalize dividends, repair or
maintain any property of the corporation, or for any other purpose, and the
directors may modify or abolish any such reserve in the manner in which it was
created.
Section 2. Checks, Drafts or Orders. All checks, drafts, or
other orders for the payment of money by or to the corporation and all notes and
other evidences of indebtedness issued in the name of the corporation shall be
signed by such officer or officers, agent or agents of the corporation, and in
such manner, as shall be determined by resolution of the board of directors or a
duly authorized committee thereof.
Section 3. Contracts. The board of directors may authorize any
officer or officers, or any agent or agents, of the corporation to enter into
any contract or to execute and deliver any instrument in the name of and on
behalf of the corporation, and such authority may be general or confined to
specific instances.
Section 4. Loans. The corporation may lend money to, or
guarantee any obligation of, or otherwise assist any officer or other employee
of the corporation or of its subsidiary, including
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any officer or employee who is a director of the corporation or its subsidiary,
whenever, in the judgment of the directors, such loan, guaranty or assistance
may reasonably be expected to benefit the corporation. The loan, guaranty or
other assistance may be with or without interest, and may be unsecured, or
secured in such manner as the board of directors shall approve, including,
without limitation, a pledge of shares of stock of the corporation. Nothing
contained in this section shall be deemed to deny, limit or restrict the powers
of guaranty or warranty of the corporation at common law or under any statute.
Section 5. Fiscal Year. The fiscal year of the corporation
shall be fixed by resolution of the board of directors.
Section 6. Corporate Seal. The board of directors shall
provide a corporate seal which shall be in the form of a circle and shall have
inscribed thereon the name of the corporation 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 7. Voting Securities Owned by Corporation. Voting
securities in any other corporation held by the corporation shall be voted by
the president or the vice president, unless the board of directors specifically
confers authority to vote with respect thereto upon some other person or
officer. Any person authorized to vote securities shall have the power to
appoint proxies, with general power of substitution.
Section 8. Inspection of Books and Records. Any stockholder of
record, in person or by attorney or other agent, shall, upon written demand upon
oath stating the purpose thereof, have the right during the usual hours of
business to inspect for any proper purpose the corporation's stock ledger, a
list of its stockholders, and its other books and records, and to make copies or
extracts therefrom. A proper purpose shall mean any purpose reasonably related
to such person's interest as a stockholder. In every instance where an attorney
or other agent shall be the person who seeks the right to inspection, the demand
under oath shall be accompanied by a power of attorney or such other writing
which authorizes the attorney or other agent to so act on behalf of the
stockholder. The demand under oath shall be directed to the corporation at its
registered office in the State of Delaware or at its principal place of
business.
Section 9. Section Headings. Section headings in these bylaws
are for convenience of reference only and shall not be given any substantive
effect in limiting or otherwise construing any provision herein.
Section 10. Inconsistent Provisions. In the event that any
provision of these bylaws is or becomes inconsistent with any provision of the
certificate of incorporation, the Delaware General Corporation Law or any other
applicable law, the provision of these bylaws shall not be given any effect to
the extent of such inconsistency but shall otherwise be given full force and
effect.
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ARTICLE VIII - AMENDMENTS
These bylaws may be amended, altered or repealed and new
bylaws adopted at any meeting of the board of directors by a majority vote,
provided that the affirmative vote of the holders of a majority of the shares of
common stock of the corporation then entitled to vote and of any series or class
of preferred stock then outstanding shall be required to adopt any provision
inconsistent with, or to amend or repeal any provision of, Section 1 or 3 of
ARTICLE III or this ARTICLE VIII. The fact that the power to adopt, amend, alter
or repeal the bylaws has been conferred upon the board of directors shall not
divest the stockholders of the same powers.
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