Exhibit 3.1
AMENDED AND RESTATED BY-LAWS OF
COACTIVE MARKETING GROUP, INC.
ARTICLE I - OFFICES
-------------------
Section 1.1. Registered Office and Registered Agent. The Corporation
shall maintain a registered office and registered agent within the State of
Delaware, which may be changed by the Board of Directors (hereinafter referred
to as the "Board of Directors" or the "Board") from time to time.
Section 1.2. Other Offices. The Corporation may also have offices at
such other places, within or without the State of Delaware, as the Board of
Directors may from time to time determine.
ARTICLE II - STOCKHOLDERS' MEETINGS
-----------------------------------
Section 2.1. Place of Stockholders' Meetings. Meetings of stockholders
may be held at such place, either within or without the State of Delaware, as
may be designated by the Board of Directors from time to time. If no such place
is designated by the Board of Directors, meetings of the stockholders shall be
held at the registered office of the Corporation in the State of Delaware.
Section 2.2. Annual Meeting.
--------------
(a) Time. A meeting of the stockholders of the Corporation shall
be held in each calendar year, commencing with the year 1995, at a date and time
fixed by the Board of Directors, or if the Board falls to set a date and time,
on the second Tuesday of September at 10:00 a.m., if not a holiday on which
national banks are or may elect to be closed ("Holiday"), and if such day is a
Holiday, then such meeting shall be held on the next business day.
(b) Election of Directors. At each annual meeting of stockholders
there shall be held an election of directors to succeed the class of directors
whose term expires at that meeting.
Section 2.3. Special Meetings of Stockholders. Except as otherwise
specifically provided by law, special meetings of the stockholders may be called
at any time only by the Chief Executive Officer of the Corporation or the Board
of Directors. Upon the written request of any person entitled to call a special
meeting under these By-laws or applicable law, which request specifies the
purpose for which the meeting is desired, it shall be the duty of the Secretary
to give prompt written notice of such meeting to be held at such time as the
Secretary may fix, subject to the provisions of Section 2-4 hereof. If the
Secretary shall fail to fix such date and give notice within 10 days after
receipt of such request, the person or persons calling the meeting may do so.
Section 2.4. Notice of Meetings and Adjourned Meetings. Written notice,
complying with Article VI of these By-laws and stating the place, date and hour
of any meeting and in the case of special meetings, the purpose or purposes for
which the meeting is called, shall be given not less than 10 nor more than 60
days before the date of the meeting to each stockholder entitled to vote at such
meeting, except as provided in Section 230 of the Delaware General Corporation
Law, as amended from time to time (the "Delaware Code"). Such notice may be
given by or at the direction of the person or persons authorized to call the
meeting. When a meeting is adjourned to another time or place, notice need not
be given of the adjourned meeting if the time and place thereof are announced at
the meeting at which the adjournment is taken. If the adjournment is for more
than 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 the meeting.
Section 2.5. Business at Meetings of Stockholders. Except as otherwise
provided by law (including but not limited to Rule 14a-8 of the Securities and
Exchange Act of 1934, as amended, or any successor provision thereto) or in
these By-laws, the business which shall be conducted at any meeting of the
stockholders shall (a) have been specified in the written notice of the meeting
(or any supplement thereto) given by the Corporation, (b) be brought before the
meeting at the direction of the Board of Directors or the presiding officer of
the meeting, or (c) have been specified in a written notice given to the
Secretary of the Corporation, by or on behalf of any stockholder who shall have
been a stockholder of record on the record date for such meeting and who shall
continue to be entitled to vote thereat (the "Stockholder Notice"), in
accordance with all of the following requirements:
(1) Each Stockholder Notice must be delivered to, or mailed and
received at, the principal executive offices of the Corporation (i) in the case
of an annual meeting that is called for a date that is within 30 days before or
2
after the anniversary date of the immediately preceding annual meeting of
stockholders, not less than 60 days nor more than 90 days prior to such
anniversary date, and (ii) in the case of an annual meeting that is called for a
date that is not within 30 days before or after the anniversary date of the
immediately preceding annual meeting, not later than the close of business on
the tenth day following the day on which notice of the date of the meeting was
mailed or public disclosure of the date of the meeting was made, whichever
occurs first; and
(2) Each such Stockholder Notice must set forth: (i) the name and
address of the stockholder who intends to bring the business before the meeting;
(ii) the general nature of the business which he or she seeks to bring before
the meeting; and (iii) a representation that the stockholder is a holder of
record of the stock of the Corporation entitled to vote at such meeting and
intends to appear in person or by proxy at the meeting to bring the business
specified in the notice before the meeting. The presiding officer of the meeting
may, in his or her sole discretion, refuse to acknowledge any business proposed
by a stockholder not made in compliance with the foregoing procedure.
Section 2.6. Quorum of and Action by Stockholders.
------------------------------------
(a) General Rule. Unless otherwise provided in the Certificate of
Incorporation of the Corporation (the "Certificate"), the presence, in person or
by proxy, of stockholders entitled to cast at least a majority of the votes that
all stockholders are entitled to cast on a particular matter to be acted upon at
the meeting shall constitute a quorum. However, in no event shall a quorum
consist of less than one-third of the shares entitled to vote at a meeting. If a
meeting cannot be organized because of the absence of a quorum, those present
may, except as otherwise provided by law, adjourn the meeting to such time and
place as they may determine.
(b) Action by Stockholders. Whenever any corporate action is to be
taken by vote of the stockholders of the Corporation at a duly organized
meeting, unless otherwise provided in the Certificate or the Delaware Code, such
corporate action shall be authorized by a majority of the votes cast at the
meeting by the holders of shares entitled to vote thereon.
3
(c) Withdrawal. The stockholders present at a duly organized
meeting can continue to do business until adjournment, notwithstanding the
withdrawal of enough stockholders to leave less than a quorum.
(d) Election of Directors at Adjourned Meeting. In the case of any
meeting for the election of directors, those stockholders who attend a meeting
called for the election of directors that has been previously adjourned for lack
of a quorum, although less than a quorum as fixed in this Section, shall
nevertheless constitute a quorum for the purpose of electing directors.
Section 2.7. Voting List: Proxies: Voting.
----------------------------
(a) Voting List. The officer who has charge of the stock ledger of
the Corporation shall prepare, at least 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
10 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.
Upon the willful neglect or refusal of the directors to produce such a
list at any meeting for the election of directors, they shall be ineligible for
election to any office at such meeting.
(b) 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. All proxies shall be executed in writing by the stockholder or such
stockholder's duly authorized attorney-in-fact and filed with the Secretary of
the Corporation not later than the day on which it is intended to be exercised.
A duly executed proxy shall be irrevocable if it states that it is irrevocable
and if, and only as long as, it is coupled with an interest sufficient in law to
support an irrevocable power. A proxy may be made irrevocable regardless of
whether the interest with which it is coupled is an interest in the stock itself
4
or an interest in the Corporation generally. No unrevoked proxy shall be voted
or acted upon after three years from its date, unless the proxy provides for a
longer period.
(c) Voting. Except as otherwise specifically provided by law, all
matters coming before the meeting shall be determined by a vote by shares. All
elections of directors shall be by written ballot unless otherwise provided in
the Certificate. Except as otherwise specifically provided by law, all other
votes may be taken by voice unless a stockholder demands that it be taken by
ballot, in which latter event the vote shall be taken by written ballot.
(d) Inspector of Elections. The Corporation shall, in advance of
any meeting of stockholders, appoint one or more inspectors who shall have such
duties as, provided in Section 231 of the Delaware Code to act at the meeting
and make a written report thereof. The Corporation may designate one or more
persons as alternate inspectors to replace any inspector who fails to act. If no
inspector or alternate is able to act at a meeting of stockholders, the person
presiding at the meeting shall appoint one or more inspectors to act at the
meeting. Each inspector, before and during the discharge of his duties, shall
take and sign an oath faithfully to execute the duties of inspector with strict
impartiality and according to the best of his or her ability.
Section 2.8. Action by Unanimous Consent of Stockholders. Unless
otherwise provided in the Certificate, any action required to be taken at any
annual or special meeting of stockholders, or any action which may be taken at
any annual or special meeting of such stockholders, may be taken without a
meeting, without prior notice and without a vote, if a consent or consents in
writing, setting forth the action so taken, shall be signed by all of the
stockholders who would be entitled to vote at a meeting for such purpose and
shall be delivered to the Secretary of the Corporation for insertion in the
Corporation's minute book.
5
ARTICLE III - BOARD OF DIRECTORS
--------------------------------
Section 3.1. Directors.
---------
(a) General Powers. The Board of Directors shall have all powers
necessary or appropriate to the management of the business and affairs of the
Corporation and, in addition to the power and authority conferred by these
By-laws, may exercise all powers of the Corporation and do all such lawful acts
and things as are not by statute, these By-laws or the Certificate directed or
required to be exercised or done by the stockholders.
(b) Number. The Board of Directors shall consist of not less than
two and not more than twelve members, the precise number to be fixed from time
to time by the Board of Directors by resolution.
Section 3.2. Place of Meeting. Meetings of the Board of Directors may
be held at such place either within or without the State of Delaware, as a
majority of the directors may from time to time designate or as may be
designated in the notice calling the meeting.
Section 3.3. Regular Meetings. A regular meeting of the Board of
Directors shall be held annually, immediately following the annual meeting of
stockholders, at the place where such meeting of the stockholders is held or at
such other place, date and hour as a majority of the directors in office after
the annual meeting of stockholders may designate. At such meeting the Board of
Directors shall elect officers of the Corporation. In addition to such regular
meeting, the Board of Directors shall have the power to fix, by resolution, the
place, date and hour of other regular meetings of the Board.
Section 3.4. Special Meetings. Special meetings of the Board of
Directors shall be held whenever ordered by the Chief Executive Officer, by a
majority of the members of the executive committee, if any, or by a majority of
the directors in office.
Section 3.5. Notices of Meetings of Board of Directors.
-----------------------------------------
(a) Regular Meetings. No notice shall be required to be given of
any regular meeting, unless the same be held at other than the time or place for
holding such meetings as fixed in accordance with Section 3.3 of these By-laws,
in which event two days notice shall be given of the time and place of such
meeting.
6
(b) Special Meetings. At least two days notice shall be given of
the time, place and purpose for which any special meeting of the Board of
Directors is to be held.
Section 3.6. Quorum. A majority of the total number of directors shall
constitute a quorum for the transaction of business, and the vote of a majority
of the directors present at a meeting at which a quorum is present shall be the
act of the Board of Directors. If there be less than a quorum present, a
majority of those present may adjourn the meeting from time to time and place to
place and shall cause notice of each such adjourned meeting to be given to all
absent directors.
Section 3.7. Informal Action by the Board of Directors. 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 or
committee.
Section 3.8. Compensation of Directors. Compensation of directors and
reimbursement of their expenses incurred in connection with the business of the
Corporation, if any, shall be as determined from time to time by resolution of
the Board of Directors.
Section 3.9. Removal of Directors by Stockholders. The entire Board of
Directors or any individual director may be removed from office, only for cause,
by a vote of the stockholders entitled to elect directors. In case the entire
Board of Directors be so removed, new directors may be elected at such time. In
the event that less than the entire Board of Directors be so removed, new
directors shall be elected by a majority of the directors then in office,
although less than a quorum.
Section 3.10. Resignations. Any director may resign at any time by
submitting his written resignation to the Corporation. Such resignation shall
take effect at the time of its receipt by the Corporation unless another time be
fixed in the resignation, in which case it shall become effective at the time so
fixed. The acceptance of a resignation shall not be required to make it
effective.
7
Section 3.11. Vacancies. Except as otherwise set forth in the
Certificate, any vacancies on the Board of Directors, including vacancies
resulting from the removal of directors under Section 3.9 and from newly created
directorships resulting from any increase in the authorized number of directors,
shall be filled by a majority vote of the remaining directors then in office,
although less than a quorum, or by a sole remaining director, and each person so
elected shall be a director until the next election of directors, and until his
or her successor is duly elected and qualified or until his or her earlier
resignation or removal.
Section 3.12. Participation by Conference Telephone. Directors may
participate in regular or special meetings of the Board or committee meetings by
means of conference telephone or similar communications equipment whereby all
persons participating in the meeting can hear each other, and such participation
shall constitute presence in person at the meeting.
Section 3.13. Nominations. Notwithstanding the provisions of Section
2.5 of these By-laws (dealing with business at meetings of stockholders),
nominations for the election of directors may be made by the Board of Directors,
a committee appointed by the Board of Directors or by any stockholder of record
entitled to vote on the election of directors who is a stockholder at the record
date of the meeting and also on the date of the meeting at which directors are
to be elected, provided such stockholder provides timely written notice to the
Secretary of the Corporation in accordance with the following requirements:
(1) To be timely, a stockholder's notice must be delivered to, or
mailed and received at, the principal executive offices of the Corporation (i)
in the case of an annual meeting that is called for a date that is within 30
days before or after the anniversary date of the immediately preceding annual
meeting of stockholders, not less than 60 days nor more than 90 days prior to
such anniversary date, and (ii) in the case of an annual meeting that is called
for a date that is not within 30 days before or after the anniversary date of
the immediately preceding annual meeting, or in the case of a special meeting of
stockholders called for the purpose of electing directors, not later than the
close of business on the tenth day following the day on which notice of the date
8
of the meeting was mailed or public disclosure of the date of the meeting was
made, whichever occurs first; and
(2) Each such written notice must set forth: (i) the name and
address of the stockholder who intends to make the nomination; (ii) the name and
address of the person or persons to be nominated; (iii) a representation that
the stockholder is a holder of record of the stock of the Corporation entitled
to vote at such meeting and intends to appear in person or by proxy at the
meeting to nominate the person or persons specified in the notice; (iv) a
description of all arrangements or understandings between the stockholder and
each nominee and any other person or persons (naming such person or persons)
pursuant to which the nomination or nominations are to be made by the
stockholder; (v) such other information regarding each nominee proposed by such
stockholder as would have been required to be included in a proxy statement
filed pursuant to the proxy rules of the Securities and Exchange Commission had
the nominee been nominated, or intended to be nominated, by the Board of
Directors; and (vi) the consent of each nominee to serve as a director of the
Corporation if so elected. The presiding officer of the meeting may refuse, in
his or her sole discretion, to acknowledge the nomination of any person not made
in compliance with the foregoing procedure.
ARTICLE IV - OFFICERS
---------------------
Section 4.1. Election and Office. The Corporation shall have a
President, a Secretary and a Treasurer who shall be elected by the Board of
Directors. The Board of Directors may elect such additional officers as it may
deem proper, including a Chairman and a Vice Chairman of the Board of Directors,
one or more Vice Presidents, and one or more assistant or honorary officers.
Officers may, but need not, be directors. Any number of offices may be held by
the same person.
Section 4.2. Term. The President, Secretary and Treasurer shall each
serve for a term of one year and until their respective successors are elected
and qualified, unless removed from office by the Board of Directors during their
respective tenures. The term of office of any other officer shall be as
specified by the Board of Directors.
9
Section 4.3. Powers and Duties of the President. Unless otherwise
determined by the Board of Directors, the President shall have the usual duties
of an executive officer with general supervision over and direction of the
affairs of the Corporation. In the exercise of these duties and subject to the
limitations set forth in the Delaware Code, these By-laws, and the actions of
the Board of Directors, the President may appoint, suspend and discharge
employees, agents and assistant officers, fix the compensation of all employees
others than executive officers, shall preside at all meetings of the
stockholders at which he or she shall be present and shall, unless there is a
Chairman of the Board of Directors, preside at all meetings of the Board of
Directors. The President shall also do and perform such other duties as from
time to time may be assigned to him or her by the Board of Directors. Unless
otherwise designated by the Board of Directors, the President shall be the Chief
Executive Officer of the Corporation.
Unless otherwise determined by the Board of Directors, the President
shall have the full power and authority on behalf of the Corporation to attend
and to act and to vote at any meeting of the stockholders of any corporation in
which the Corporation may hold stock, and, at any such meeting, shall possess
and may exercise any and all of the rights and powers incident to the ownership
of such stock and which, as the owner thereof, the Corporation might have
possessed and exercised. The President shall also have the right to delegate
such power.
Section 4.4. Powers and Duties of the Secretary. Unless otherwise
determined by the Board of Directors, the Secretary shall record all proceedings
of the meetings of the Corporation, the Board of Directors and all committees,
in books to be kept for that purpose, and shall attend to the giving and serving
of all notices for the Corporation. The Secretary shall have charge of the
corporate seal, the certificate books, transfer books and stock ledgers, and
such other books and papers as the Board of Directors may direct. The Secretary
shall perform all other duties ordinarily incident to the office of Secretary
and shall have such other powers and perform such other duties as may be
assigned to him or her by the Board of Directors.
10
Section 4.5. Powers and Duties of the Treasurer. Unless otherwise
determined by the Board of Directors, the Treasurer shall have charge of all the
funds and securities of the Corporation which may come into his or her hands.
When necessary or proper, unless otherwise ordered by the Board of Directors,
the Treasurer shall endorse for collection on behalf of the Corporation checks,
notes and other obligations, and shall deposit the same to the credit of the
Corporation in such banks or depositories as the Board of Directors may
designate and shall sign all receipts and vouchers for payments made to the
Corporation. The Treasurer shall enter regularly, in books of the Corporation to
be kept by him or her for that purpose, a full and accurate account of all
moneys received and paid by him or her on account of the Corporation. Whenever
required by the Board of Directors, the Treasurer shall render a statement of
the financial condition of the Corporation. The Treasurer shall at all
reasonable times exhibit the Corporation's books and accounts to any director of
the Corporation, upon application at the office of the Corporation during
business hours. The Treasurer shall have such other powers and shall perform
such other duties as may be assigned to him or her from time to time by the
Board of Directors.
Section 4.6. Powers and Duties of the Chairman of the Board of
Directors. Unless otherwise determined by the Board of Directors, the Chairman
of the Board, if any, shall preside at all meetings of directors. The Chairman
of the Board shall have such other powers and perform such further duties as may
be assigned to such officer by the Board of Directors, including, without
limitation, acting as Chief Executive Officer of the Corporation. To be eligible
to serve, the Chairman of the Board must be a director of the Corporation.
Section 4.7. Powers and Duties of Vice Presidents and Assistant
Officers. Unless otherwise determined by the Board of Directors, each Vice
President and each assistant officer shall have the powers and perform the
duties as shall be designated by the Board of Directors. Vice Presidents and
assistant officers shall have such rank as shall be designated by the Board of
Directors and each, in the order of rank, shall act for such superior officer in
his or her absence or disability or when so directed by such superior officer or
by the Board of Directors. Vice Presidents may be designated as having
responsibility for a specific aspect of the Corporation's affairs, in which
event each such Vice President shall be superior to the other Vice Presidents in
relation to matters within his or her area. The President shall be the superior
officer of the Vice Presidents.
11
The Treasurer and the Secretary shall be the superior officers of the
Assistant Treasurers and Assistant Secretaries, respectively.
Section 4.8. Delegation of Office. The Board of Directors may delegate
the powers or duties of any officer of the Corporation to any other officer or
to any director from time to time.
Section 4.9. Vacancies. The Board of Directors shall have the power to
fill any vacancies in any office occurring for any reason.
Section 4.10. Resignations. Any officer may resign at any time by
submitting his or her written resignation to the Corporation. Such resignation
shall take effect at the time of its receipt by the Corporation, unless another
time be fixed in the resignation, in which case it shall become effective at the
time so fixed. The acceptance of a resignation shall not be required to make it
effective.
ARTICLE V - CAPITAL STOCK
-------------------------
Section 5.1. Stock Certificates.
------------------
(a) Execution. The shares of the Corporation shall be represented
by certificates, or shall be uncertificated. Certificates for the shares of
stock, if any, shall be in such form as is consistent with the Certificate of
Incorporation and applicable law. Every holder of stock represented by
certificates 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 of Directors,
or the President or any Vice President and by the Treasurer or Assistant
Treasurer or the Secretary or Assistant Secretary, certifying the number of
shares owned by such holder in the Corporation. Any or all of the signatures on
the certificate may be facsimiles. 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 with the same effect as if
he were such officer, transfer agent, or registrar at the date of issue.
12
(b) Fractional Shares. Except as otherwise determined by the Board
of Directors, shares or certificates thereof may be issued as fractional shares.
Section 5.2. Fixing Date for Determination of Stockholders of Record.
-------------------------------------------------------
(a) General Rules. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, the Board of Directors may fix a record date, which
record date shall not precede the date upon which the resolution fixing the
record date is adopted by the Board of Directors, and which record date shall
not be more than 60 nor less than 10 days before the date of such meeting.
If no record date is fixed by the Board of Directors, the record date
for determining stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the day next preceding the day
on which notice is given, or, if notice is waived, at the close of business on
the day next preceding the day on which the meeting is held. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; providing, however,
that the Board of Directors may fix a new record date for the adjourned meeting.
(b) Actions in Lieu of Meeting. In order that the Corporation may
determine the stockholders entitled to consent to corporate action in writing
without a meeting, the Board of Directors may fix a record date, which record
date shall not precede the date upon which the resolution fixing the record date
is adopted by the Board of Directors, and which date 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. If no record date has been fixed by the Board of
Directors, the record 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 Code, 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. Delivery made to the Corporation's registered office
shall be by hand or by certified or registered mail, return receipt requested.
13
If no record date has been fixed by the Board of Directors and prior
action by the Board of Directors is required by the Delaware Code, the record
date for determining stockholders entitled to consent to corporate action in
writing without a meeting shall be at the close of business on the day on which
the Board of Directors adopts a resolution taking such prior action.
(c) Dividends and Other Related Matters. In order that the
Corporation may determine the stockholders entitled to receive payment of any
dividend or other distribution or allotment of any rights or the stockholders
entitled to exercise any rights in respect of any change, conversion or exchange
of stock, or for the purpose of any other lawful action, the Board of Directors
may fix a record date, which record date shall not precede the date upon which
the resolution fixing the record date is adopted, and which record date shall be
not more than 60 days prior to such action.
If no record date is fixed, the record date for determining
stockholders for any such purpose shall be at the close of business on the day
on which the Board of Directors adopts the resolution relating thereto.
Section 5.3. Transfer of Shares. Except as provided in Section 5.4,
transfers of record of shares of stock of the Corporation shall be made only
upon its books by the holders thereof, in person or by attorney duly authorized,
and, in the case of stock represented by certificate, upon the surrender of a
properly endorsed certificate or certificates for a like number of shares, which
certificate shall be cancelled at the time of transfer. No transfer shall be
made on the books of the Corporation if such transfer is on violation of a
lawful restriction noted conspicuously on a certificate presented for transfer.
Section 5.4. Lost, Stolen or Destroyed Share Certificates. The
Corporation may issue a new certificate of stock or uncertified shares in place
of any certificate therefore issued by it, alleged to have been lost, stolen or
destroyed, and the Corporation may require the owner of the lost, stolen, or
destroyed certificate, or his legal representative to give the Corporation a
bond sufficient to indemnify it against claim that may be made against it on
account of the alleged loss, theft or destruction of any such certificate or the
issuance of such new certificate or uncertified shares.
14
ARTICLE VI - NOTICES - COMPUTING TIME PERIODS
---------------------------------------------
Section 6.1. Contents of Notice. Whenever any notice of a meeting is
required to be given pursuant to these By-laws, the Certificate or otherwise,
the notice shall specify the place, day and hour of the meeting; in the case of
a special meeting or where otherwise required by law, the general nature of the
business to be transacted at such meeting; and any other information required by
the Delaware Code.
Section 6.2. Method of Notice. All notices shall be given to each
person entitled thereto, either personally or by sending a copy thereof by first
class or express mail, postage prepaid, or by telegram (with messenger service
specified), telex or TWX (with answer back received) or courier service, charges
prepaid, or by telecopier, with confirmation of receipt, to such person's
address (or their telex, TWX, telecopier or telephone number), as it appears on
the records of the Corporation, or supplied by such person to the Corporation
for the purpose of notice. If notice is sent by mail, telegraph or courier
service, it shall be deemed to have been given to the person entitled thereto
when deposited in the United States Mail, with the telegraph office or with the
courier service, as the case may be, for delivery to that person or, in the case
of telex, TWX or telecopier, when dispatched. If no address for a stockholder
appears on the books of the Corporation and such stockholder has not supplied
the Corporation with an address for the purpose of notice, notice deposited in
the United States Mail addressed to such stockholder care of General Delivery in
the city in which the principal office of the Corporation is located shall be
sufficient.
Section 6.3. Waiver of Notice. Whenever notice is required to be given
under any provision of the Delaware Code, the Certificate or these By-laws, a
written waiver, signed by the person entitled to notice, whether before or after
the time stated therein, shall be deemed equivalent to notice. Attendance of a
person at a meeting shall constitute a waiver of notice of such meeting, except
when the person attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the meeting
15
is not lawfully called or convened. Neither the business to be transacted at,
nor the purpose of, any regular or special meeting of the stockholders,
directors, or members of a committee of directors need be specified in any
written waiver of notice unless so required by the Certificate.
Section 6.4. Computing Time Periods.
----------------------
(a) Days to be Counted. In computing the number of days for
purposes of these By-laws, all days shall be counted, including Saturdays,
Sundays or Holidays; provided, however, that if the final day of any time period
fails on a Saturday, Sunday or Holiday, then the final day shall be deemed to be
the next day which is not a Saturday, Sunday or Holiday. In computing the number
of days for the purpose of giving notice of any meeting, the date upon which the
notice is given shall be counted but the day set for the meeting shall not be
counted.
(b) Two Day Notice. In any case where only two days notice is
being given, notice must be given at least 48 hours in advance by delivery in
person, telephone, telex, TWX, telecopler or similar means of communication.
ARTICLE VII - INDEMNIFICATION OF DIRECTORS AND
----------------------------------------------
OFFICERS AND OTHER PERSONS
--------------------------
Section 7.1. Indemnification. The Corporation shall have the power to
indemnify any director, officer, employee or agent of the Corporation against
expenses (including attorney's fees), judgments, fines and amounts paid in
settlement, actually and reasonably incurred by him or her, to the fullest
extent now or hereafter permitted by law in connection with and including, but
not limited to, those instances in which such indemnification, although greater
in scope or degree than that expressly provided by Section 145 of the Delaware
Code, as deemed by a majority of a quorum of directors who were not parties to
such action, suit or proceeding (which may consist of only one director if there
is only one such disinterested director) or by independent legal counsel, after
due investigation, to be in the best interests of the Corporation, with any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, brought or threatened to be brought
against him or her by reason of his or her performance as a director, officer,
16
employee or agent of the Corporation, its parent or any of its subsidiaries, or
in any other capacity on behalf of the Corporation, its parent or any of its
subsidiaries. The Board of Directors by resolution adopted in each specific
instance may similarly indemnify any person other than a director, officer,
employee or agent of the Corporation for liabilities incurred by him or her in
connection with services rendered by him or her for or at the request of the
Corporation, its parent or any of its subsidiaries.
The provisions of this Section shall be applicable to all actions,
suits or proceedings commenced after its adoption, whether such arise out of
acts or omissions which occurred prior or subsequent to such adoption and shall
continue as to a person who has ceased to be a director, officer, employee or
agent or to render services for or at the request of the Corporation or as the
case may be, its parent, or subsidiaries and shall inure to the benefit of the
heirs, executors and administrators of such a person. The rights of
indemnification provided for herein shall not be deemed exclusive of any other
rights to which any director, officer, employee or agent of the Corporation may
be entitled under these By-laws, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his official capacity
and as to action in another capacity while holding such office, and shall
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 a person.
Section 7.2. Advances. Expenses (including attorney's fees) incurred by
any officer or director in defending any civil, criminal, administrative or
investigative action, suit or proceeding, whether threatened, pending or
completed, may be paid by the Corporation in advance of the final disposition of
such action, suit or proceeding as authorized by the Board of Directors in the
specific case 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 indemnified by the Corporation as authorized by law.
Such expenses (including attorney's fees) incurred by other employees and agents
may be paid upon such terms and conditions, if any, as the Board of Directors
deems appropriate.
17
Section 7.3. Amendment. The provisions of this Article VII relating to
indemnification and to the advancement of expenses shall constitute a contract
between the Corporation and each of its directors and officers which may be
modified as to any director or officer only with that person's consent or as
specifically provided in this Section. Notwithstanding any other provision of
these By-laws relating to their amendment generally, any repeal or amendment of
this Article VII which is adverse to any director or officer shall apply to such
director or officer only on a prospective basis, and shall not limit the rights
of persons covered by this Article VII to indemnification or to the advancement
of expenses with respect to any action or failure to act occurring prior to the
time of such repeal or amendment. Notwithstanding any other provision of these
By-laws, no repeal or amendment of these By-laws shall affect any or all of this
Article VII so as to limit indemnification or the advancement of expenses in any
manner unless adopted by (a) the unanimous vote of the directors of the
Corporation then serving, or (b) the affirmative vote of shareholders entitled
to cast not less than a majority of the votes that all shareholders are entitled
to cast in the election of directors; provided that no such amendment shall have
retroactive effect inconsistent with the preceding sentence.
Section 7.4. Insurance. 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 law.
ARTICLE VIII - SEAL
-------------------
The form of the seal of the Corporation, [Form of Seal] called the
corporate seal of the Corporation, shall be
as impressed adjacent hereto.
18
ARTICLE IX - FISCAL YEAR
------------------------
The Board of Directors shall have the power by resolution to fix the
fiscal year of the Corporation. If the Board of Directors shall fail to do so,
the President shall fix the fiscal year.
ARTICLE X - AMENDMENTS
----------------------
(a) Stockholders. The affirmative vote of the holders of a
majority of the combined voting power of the outstanding shares of stock
entitled to vote generally in the election of directors, voting together as a
single class, shall be required to alter, amend or repeal these By-laws or to
adopt any provision inconsistent therewith.
(b) Board of Directors. If the Certificate so provides, the Board
shall have the power to alter, amend or repeal these By-laws, however, the Board
may not alter, amend or repeal any provision or subject of these By-laws which
is expressly committed to the stockholders by the Delaware Code or otherwise.
Notwithstanding that such power may be granted to the Board, it shall not divest
the stockholders of the power, nor limit their power to adopt, amend or repeal
these By-laws.
ARTICLE XI - INTERPRETATION OF BY-LAWS - - SEPARABILITY
-------------------------------------------------------
Section 11.1. Interpretation. All words, terms and provisions of these
By-laws shall be interpreted and defined by and in accordance with the Delaware
Code, as amended, and as amended from time to time hereafter.
Section 11.2. Separability. The provisions of these By-laws are
independent of and separable from each other, and no provision shall be affected
or rendered invalid or unenforceable by virtue of the fact that for any reason
any other or others of them may be invalid or unenforceable in whole or in part.
ARTICLE XII - DETERMINATION BY THE BOARD
----------------------------------------
Section 12.1. Effect of Board Determinations. Any determination
involving interpretation or application of these By-laws made in good faith by
the Board of Directors shall be final, binding and conclusive on all parties in
interest.
19