EXHIBIT 3.2
BYLAWS
OF
TWIN ENTERTAINMENT INC.
(a Delaware Corporation)
as of January 31, 2000
TABLE OF CONTENTS
PAGE
ARTICLE I Offices............................................................1
Section 1.1 Registered Office.............................................1
Section 1.2 Other Offices.................................................1
ARTICLE II Meetings of Stockholders...........................................1
Section 2.1 Place of Meeting..............................................1
Section 2.2 Annual Meeting................................................1
Section 2.3 Notice of Annual Meeting......................................1
Section 2.4 List of Stockholders..........................................1
Section 2.5 Special Meetings..............................................2
Section 2.6 Notice of Special Meetings....................................2
Section 2.7 Business at Special Meetings..................................2
Section 2.8 Adjourned Meetings and Notice Thereof.........................2
Section 2.9 Quorum........................................................3
Section 2.10 Majority Vote.................................................3
Section 2.11 Voting........................................................3
Section 2.12 Stockholder Action Without Meeting............................3
ARTICLE III Directors..........................................................4
Section 3.1 Number of Directors, Election and Term of Office..............4
Section 3.2 Vacancies.....................................................4
Section 3.3 Powers........................................................4
Section 3.4 Compensation of Directors.....................................4
Section 3.5 Resignation and Removal.......................................5
ARTICLE IV Meetings of the Board of Directors.................................5
Section 4.1 Place of Meeting..............................................5
Section 4.2 Organization Meeting..........................................5
Section 4.3 Regular Meetings..............................................5
Section 4.4 Special Meetings..............................................5
Section 4.5 Notice of Special Meetings....................................5
Section 4.6 Waiver of Notice..............................................6
Section 4.7 Quorum........................................................6
Section 4.8 Adjournment...................................................6
Section 4.9 Action Without Meeting........................................6
Section 4.10 Conference Communication......................................6
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TABLE OF CONTENTS
(CONTINUED)
PAGE
ARTICLE V Committees of Directors............................................7
Section 5.1 Committees of Directors.......................................7
ARTICLE VI Officers...........................................................7
Section 6.1 Officers......................................................7
Section 6.2 Other Officers................................................8
Section 6.3 Election......................................................8
Section 6.4 Compensation..................................................8
Section 6.5 Term..........................................................8
Section 6.6 The Chairman of the Board.....................................8
Section 6.7 The Chief Executive Officer...................................8
Section 6.8 The President.................................................8
Section 6.9 The Vice Presidents...........................................9
Section 6.10 The Secretary.................................................9
Section 6.11 The Assistant Secretary.......................................9
Section 6.12 The Treasurer.................................................9
Section 6.13 The Assistant Treasurer.......................................9
ARTICLE VII Indemnification of Directors, Officers, Employees and Agents......10
Section 7.1 Indemnification..............................................10
Section 7.2 Insurance....................................................12
Section 7.3 Savings Clause...............................................13
ARTICLE VIII Stockholders......................................................13
Section 8.1 Certificates of Stock........................................13
Section 8.2 Lost Certificates............................................13
Section 8.3 Transfer of Stock............................................13
Section 8.4 Stockholders of Record; No Record Date.......................13
Section 8.5 Registered Stockholders......................................14
ARTICLE IX General Provisions................................................15
Section 9.1 Dividends....................................................15
Section 9.2 Checks.......................................................15
Section 9.3 Execution of Documents.......................................15
ARTICLE X Amendments........................................................15
Section 10.1 Amendments...................................................15
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ARTICLE I
OFFICES
SECTION 1.1 REGISTERED OFFICE. The registered office of the corporation
in the State of Delaware shall be 1209 Orange Street, New Castle County,
Wilmington, Delaware 19801. The name of the registered agent of the corporation
at such location is Corporation Trust Center. Such registered agent has a
business address identical with such registered office.
SECTION 1.2 OTHER OFFICES. The corporation may also have offices at
such other places both within and without the State of Delaware as the Board of
Directors may from time to time determine or the business of the corporation may
require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 2.1 PLACE OF MEETING. Meetings of stockholders shall be held at
such place, either within or without the State of Delaware, as may be designated
by the Board of Directors. In the absence of any such designation, stockholders,
meetings shall be held at the corporation's principal executive offices.
SECTION 2.2 ANNUAL MEETING. The annual meeting of stockholders shall be
held on the fourth Thursday in April of each year, beginning in 2001, or such
other date and at such time as shall be designated by the Board of Directors and
stated in the notice of the meeting, provided that the date so designated shall
be within thirteen months after the next preceding annual meeting.
At each annual meeting the stockholders shall elect directors to
succeed those whose terms expire in that year and to serve until their
successors are elected, and shall transact such other business as may properly
be brought before the meeting. Notwithstanding the foregoing, no annual meeting
shall be held if all actions, including the election of directors, required by
the General Corporation Law of the State of Delaware to be taken at a
stockholders' annual meeting are taken by written consent in lieu of a meeting
pursuant to Section 2.12 of this Article II.
SECTION 2.3 NOTICE OF ANNUAL MEETING. Written notice of the annual
meeting stating the place, date and hour of the meeting shall be given to each
stockholder entitled to vote at such meeting not less than ten nor more than
sixty calendar days before the date of the meeting. Such notice shall be given
either personally or by United States mail, postage prepaid, or by other means
of written communication, directed to each stockholder entitled to vote at such
meeting at the address of such stockholder appearing on the books of the
corporation or given by him to the corporation for the purpose of such notice.
The notice shall be deemed to have been given at the time when delivered
personally or deposited in the United States mail, postage prepaid, or sent by
other means of written communication.
SECTION 2.4 LIST OF STOCKHOLDERS. The officer who has charge of the
stock ledger of the corporation shall prepare and make, at least ten calendar
days before every meeting of stockholders, a complete list of stockholders
entitled to vote at the meeting, arranged in alphabetical order, and showing the
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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 calendar 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 2.5 SPECIAL MEETINGS. 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, the
Chief Executive Officer, the President or the Secretary, and shall be called by
the Chairman of the Board, the Chief Executive Officer, the President or the
Secretary at the request of a majority of the Board of Directors or at the
request in writing of stockholders owning a majority in amount of the
outstanding capital stock of the corporation issued and outstanding and entitled
to vote. Such request shall state the purpose or purposes of such meeting.
SECTION 2.6 NOTICE OF SPECIAL MEETINGS. Written notice of a special
meeting of stockholders stating the place, date and hour of the meeting and the
purpose or purposes for which the meeting is called shall be given not less than
ten nor more than sixty calendar days before the date of the meeting to each
stockholder entitled to vote at such meeting. Such notice shall be given either
personally or by United States mail, postage prepaid, or by other means of
written communication, directed to each stockholder entitled to vote at such
meeting at the address of such stockholder appearing on the books of the
corporation or given by him to the corporation for the purpose of such notice.
The notice shall be deemed to have been given at the time when delivered
personally or deposited in the United States mail, postage prepaid, or sent by
other means of written communication.
Upon request by any person or persons entitled to call a special
meeting, the Chairman of the Board, Chief Executive Officer, President, Vice
President or Secretary shall within twenty calendar days after receipt of the
request cause notice to be given to the stockholders entitled to vote that a
special meeting will be held at a time requested by the person or persons
calling the meeting, but not less than thirty-five calendar days after receipt
of the request.
SECTION 2.7 BUSINESS AT SPECIAL MEETINGS. The business transacted at
any special meeting of stockholders shall be limited to the purposes stated in
the notice.
SECTION 2.8 ADJOURNED MEETINGS AND NOTICE THEREOF. Any stockholders'
meeting, annual or special, whether or not a quorum is present, may be adjourned
from time to time by the vote of a majority of the shares represented either in
person or by proxy, but in the absence of a quorum, no other business may be
transacted at such meeting, except as provided in Section 2.10 of these bylaws.
When a stockholders' meeting is adjourned to another time or place, a
notice of the adjourned meeting need not be given if the time and place thereof
are announced at the meeting at which the adjournment is taken; except that if
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the adjournment is for more than thirty days or if after the adjournment a new
record date is fixed for the adjourned meeting, notice of the adjourned meeting
small be given to each stockholder of record entitled to vote thereat.
At the adjourned meeting, the corporation may transact any business
which might have been transacted at the original meeting.
SECTION 2.9 QUORUM. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation.
SECTION 2.10 MAJORITY VOTE. If a quorum is present at any meeting, the
affirmative vote of the holders of a majority of the stock having voting power
present in person or represented by proxy shall decide any question brought
before such meeting, unless a different vote is required on that question by
express provision of statute or of the certificate of incorporation, in which
case such express provision shall govern and control. Where a separate vote by
class is required, the affirmative vote of the majority of shares of such class
present in person or by proxy at the meeting shall be the act of such class.
The stockholders present at a duly called or held meeting at which a
quorum is present may continue to do business until adjournment, notwithstanding
the withdrawal of enough stockholders to leave less than a quorum, if any action
taken (other than adjournment) is approved by at least a majority of the shares
required to constitute a quorum, unless a different vote is required as set
forth above.
SECTION 2.11 VOTING. Except as otherwise provided in the certificate of
incorporation and subject to Section 8.4 of these bylaws, each stockholder shall
be entitled to one vote for each share of capital stock having voting power held
by such stockholder. 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. Voting may be viva voce
or by written ballot; provided, however, that all elections for directors must
be by written ballot, unless otherwise provided in the certificate of
incorporation.
Any holder of shares entitled to vote on any matter may vote part of
the shares in favor of the proposal and refrain from voting the remaining shares
or vote them against the proposal, other than elections to office, but, if the
stockholder fails to specify the number of shares such stockholder is voting
affirmatively, it shall be conclusively presumed that the stockholder's
approving vote is with respect to all shares said stockholder is entitled to
vote.
SECTION 2.12 STOCKHOLDER ACTION WITHOUT MEETING. Unless otherwise
provided in the certificate of incorporation, any action required to be taken at
any annual or special meeting of stockholders of the corporation, 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
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
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which all shares entitled to vote thereon were present and voted. Prompt notice
of the taking of corporate action without a meeting by less than unanimous
written consent shall be given to those stockholders who have not consented in
writing.
ARTICLE III
DIRECTORS
SECTION 3.1 NUMBER OF DIRECTORS, ELECTION AND TERM OF OFFICE. The
number of directors which shall constitute the whole board shall be not less
than four (4) nor more than five (5). Unless otherwise provided in the
certificate of incorporation, all elections of directors shall be by written
ballot. Each director elected shall hold office until his successor is elected
and qualified. Directors need not be stockholders. This section is subject to
the provisions of that certain stockholders agreement, dated as of January 31,
2000, between the corporation, Two Way TV Limited and Interactive Network, Inc.,
as such agreement may be amended from time to time (the "Stockholders
Agreement").
SECTION 3.2 VACANCIES. Subject to the provisions of the Stockholders
Agreement, a vacancy in the Board of Directors shall be deemed to exist in case
of the death, resignation or removal of any director, or if the authorized
number of directors be increased, or if the stockholders fail at any annual or
special meeting of stockholders at which any director or directors are elected
to elect the full authorized number of directors to be voted for at that
meeting.
Unless otherwise provided in the certificate of incorporation, and
subject to the Stockholders Agreement, vacancies occurring on the Board for any
reason may be filled by a majority of the directors then in office, although
less than a quorum, or by a sole remaining director, and any director so chosen
shall hold office for the unexpired term in respect of which such vacancy
occurred and until his or her successor is duly elected and qualified.
Unless otherwise provided in the certificate of incorporation, when a
director shall resign from the board, effective at a future date, a majority of
the directors then in office shall have power to fill such vacancy, the vote
thereon to take effect when such resignation shall become effective; provided,
however, that if any such vacancy is with respect to a Board seat that a
stockholder of the corporation is entitled to appoint or designate pursuant to
an agreement with the corporation, then any director so chosen shall be an
individual designated by such stockholder.
SECTION 3.3 POWERS. The business and affairs of the corporation shall
be managed by or under the direction of its Board of Directors which may
exercise all such powers of the corporation and do all such lawful acts and
things as are not by statute or by the certificate of incorporation or by these
bylaws directed or required to be exercised or done by the stockholders.
SECTION 3.4 COMPENSATION OF DIRECTORS. The directors shall not receive
any stated salary for their services as directors but may be paid their
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expenses, if any, of attendance at each meeting of the Board of Directors and
may be paid a reasonable fixed sum for attendance at each meeting of the Board
of Directors. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings. The directors may receive stock options pursuant to any
stock option plan of the corporation.
SECTION 3.5 RESIGNATION AND REMOVAL. Any director may resign effective
upon giving written notice to the Chairman of the Board, the Chief Executive
Officer, the President, the Secretary or the Board of Directors of the
corporation, unless the notice specifies a later time for the effectiveness of
such resignation. If the resignation is effective at a future time, a successor
may be elected to take office when the resignation becomes effective. Any
director may be removed in accordance with applicable law. This section is
subject to the provisions of the Stockholders Agreement.
ARTICLE IV
MEETINGS OF THE BOARD OF DIRECTORS
SECTION 4.1 PLACE OF MEETING. Unless otherwise restricted by the
certificate of incorporation, the Board of Directors of the corporation may hold
meetings, both regular and special, either within or without the State of
Delaware.
SECTION 4.2 ORGANIZATION MEETING. As soon as practicable after each
annual meeting of stockholders, the Board of Directors shall hold a regular
meeting for the purpose of organization, electing officers and transacting other
business. No notice of such meeting need be given. In the event such meeting is
not so held, the meeting may be held at such time and place as shall be
specified in a notice given as hereinafter provided for special meetings of the
Board of Directors, or as shall be specified in a written waiver signed by all
of the directors. Notwithstanding the foregoing, no such regular meeting shall
be held if all such actions are taken by written consent in lieu of a meeting
pursuant to Section 4.9 of this Article IV.
SECTION 4.3 REGULAR MEETINGS. Regular meetings of the Board of
Directors may be held at such time and at such place as shall from time to time
be determined by the Board of Directors. Such regular meetings may be held
without notice.
SECTION 4.4 SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called by the Chairman of the Board or on the written request
of a majority of the directors then in office. This section is subject to the
provisions of the Stockholders Agreement and that certain Joint Venture License
Agreement, dated as of January 31, 2000, between the corporation, Two Way TV
Limited and Interactive Network, Inc., as such agreement may be amended from
time to time.
SECTION 4.5 NOTICE OF SPECIAL MEETINGS. Notice of the time and place of
special meetings of the Board of Directors shall be delivered personally to each
director, or sent to each director by certified mail with confirmed receipt,
facsimile transmission with confirmed receipt, telephone or telegraph. In case
such notice is sent by mail, it shall be deposited in the United States mail at
least six days prior to the time of the holding of the meeting. In case such
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notice is delivered personally, or by facsimile transmission, telephone or
telegraph, it shall be so delivered at least twenty-four hours prior to the time
of the holding of the meeting. Such notice shall not be necessary if appropriate
waivers, consents and/or approvals are filed in accordance with Section 4.6 of
this Article IV.
SECTION 4.6 WAIVER OF NOTICE. Notice of a meeting need not be given to
any director who signs a waiver of notice, whether before or after the meeting,
or who attends the meeting without protesting, prior thereto or at its
commencement, the lack of notice to such director.
The transactions of any meeting of the Board of Directors, however
called and noticed or wherever held, shall be as valid as though had at a
meeting duly held after regular call and notice if a quorum is present and if,
either before or after the meeting, each of the directors not present signs a
written waiver of notice, a consent to holding the meeting or an approval of the
minutes thereof. All such waivers, consents and approvals shall be filed with
the corporate records or made a part of the minutes of the meeting.
SECTION 4.7 QUORUM. Subject to the provisions of the Stockholders
Agreement, at all meetings of the Board of Directors, a majority of the total
authorized number of directors shall constitute a quorum for the transaction of
business unless the certificate of incorporation requires a greater number. The
vote of the majority of the directors present at a meeting at which a quorum is
present shall be the act of the Board of Directors unless the certificate of
incorporation or the Stockholders Agreement shall require a vote of a greater
number. If a quorum shall not be present at any meeting of the Board of
Directors, the directors present thereat may adjourn the meeting without notice
other than announcement at the meeting, until a quorum shall be present. A
meeting at which a quorum is initially present may continue to transact
business, notwithstanding the withdrawal of directors, if any action taken is
approved by at least a majority of the required quorum for such meeting.
SECTION 4.8 ADJOURNMENT. Any meeting of the Board of Directors, whether
or not a quorum is present, may be adjourned to another time and place by the
vote of a majority of the directors present. Notice of the time and place of the
adjourned meeting need not be given to absent directors if said time and place
are fixed at the meeting adjourned.
SECTION 4.9 ACTION WITHOUT MEETING. 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 thereof, 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 thereof.
SECTION 4.10 CONFERENCE COMMUNICATION. Unless otherwise restricted by
the certificate of incorporation or these bylaws, members of the Board of
Directors or any committee designated by the Board of Directors may participate
in a meeting of the Board of Directors or committee by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other. Participation in a meeting
pursuant to this Section 4.10 shall constitute presence in person at such
meeting.
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ARTICLE V
COMMITTEES OF DIRECTORS
SECTION 5.1 COMMITTEES OF DIRECTORS. The Board of Directors may, by
resolution passed by a majority of the whole Board of Directors, designate one
or more committees, each committee to consist of one or more of the directors of
the corporation. The Board of Directors may designate one or more directors as
alternate members of any committee, who may replace any absent or disqualified
member at any meeting of the committee. In the absence or disqualification of a
member of a committee, 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. Any such
committee, to the extent provided in the resolution of the Board of Directors or
in these bylaws, shall have and may exercise all the powers and authority of the
Board of Directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it, but no such committee shall have the power or
authority in reference to amending the certificate of incorporation (except that
a committee may, to the extent authorized in the resolution or resolutions
providing for the issuance of shares of stock adopted by the Board of Directors
as provided in Section 151(a) of the Delaware General Corporation Law, fix the
designations and any of the preferences or rights of such shares relating to
dividends, redemption, dissolution, any distribution of assets of the
corporation or the conversion into, or the exchange of such shares for, shares
of any other class or classes or any other series of the same or any other class
or classes of stock of the corporation or fix the number of shares of any series
of stock or authorize the increase or decrease of the shares of any series),
adopting an agreement of merger or consolidation under Section 251 or 252 of the
Delaware General Corporation Law, recommending to the stockholders the sale,
lease or exchange of all or substantially all of the corporation's property and
assets, recommending to the stockholders a dissolution of the corporation or a
revocation of a dissolution, or amending the bylaws of the Corporation; and,
unless the resolution, bylaws, or certificate of incorporation expressly so
provide, no such committee shall have the power or authority to declare a
dividend, to authorize the issuance of stock, or to adopt a certificate of
ownership and merger pursuant to Section 253 of the Delaware General Corporation
Law, or to perform any of the actions set forth in the Stockholders Agreement
which requires the affirmative vote of a certain number of directors of the
corporation. 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.Committee Minutes. Each committee shall keep regular minutes of its
meetings and report the same to the Board of Directors when required.
ARTICLE VI
OFFICERS
SECTION 6.1 OFFICERS. The officers of the corporation shall be chosen
by the Board of Directors and shall be a President, a Secretary and a Treasurer.
The Board of Directors may also choose a Chairman of the Board, Vice Chairman of
the Board, Chief Executive Officer, one or more Vice Presidents, and one or more
Assistant Secretaries and assistant Treasurers. Any number of offices may be
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held by the same person, unless the certificate of incorporation or these bylaws
otherwise provide. This Article VI is subject to the provisions of the
Stockholders Agreement.
SECTION 6.2 OTHER OFFICERS. The Board of Directors may appoint such
other officers and agents as it shall deem necessary who shall hold their
offices for such terms and shall exercise such powers and perform such duties as
shall be determined from time to time by the Board of Directors.
SECTION 6.3 ELECTION. The Board of Directors at its first meeting after
each annual meeting of stockholders shall choose a President, a Secretary and a
Treasurer.
SECTION 6.4 COMPENSATION. The salaries of all officers and agents of
the corporation shall be fixed from time to time by the Board of Directors or by
a committee appointed or officers designated for such purpose, and no officer
shall be prevented from receiving such compensation by reason of the fact that
he is also a director of the corporation.
SECTION 6.5 TERM. Each officer shall hold office until his or her
successor is elected and qualified or until his or her earlier resignation or
removal. Any officer elected or appointed by the Board of Directors may be
removed at any time, either with or without cause, by the affirmative vote of a
majority of the Board of Directors. Any officer may resign at any time by giving
written notice to the corporation. Any such resignation shall take effect at the
date of the receipt of such notice or at any later time specified therein; and,
unless otherwise specified therein, the acceptance of such resignation shall not
be necessary to make it effective. Any vacancy occurring in any office of the
corporation by death, resignation, removal or otherwise, shall be filled by the
Board of Directors.
SECTION 6.6 THE CHAIRMAN OF THE BOARD. The Chairman of the Board, if
any, shall preside at all meetings of the Board of Directors and of the
stockholders. He shall present at each annual meeting of stockholders and of
directors a report of the condition of the business of the corporation. The
Chairman of the Board shall have such other powers and duties as may be
prescribed by the Board of Directors or by these bylaws.
SECTION 6.7 THE CHIEF EXECUTIVE OFFICER. The Chief Executive Officer,
if any, shall, subject to the control of the Board of Directors, have general
supervision, direction and control of the business and affairs of the
corporation. The Chief Executive Officer shall act on behalf of the Chairman of
the Board whenever the Chairman of the Board is for any reason unable to perform
his duties or exercise his powers. The Chief Executive Officer shall be ex
officio a member of all the standing committees, including the executive
committee, if any, and shall have the general powers and duties of management
usually vested in the chief executive officer of a corporation, and shall have
such other powers and duties as may be prescribed by the Board of Directors or
by these bylaws.
SECTION 6.8 THE PRESIDENT. The President shall, subject to the control
of the Board of Directors and the control of the Chief Executive Officer, if
any, have general supervision, direction and control of the business and affairs
of the corporation. The President shall act on behalf of the Chairman of the
Board whenever the Chairman of the Board and the Chief Executive Officer are for
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any reason unable to perform their duties or exercise their powers. He shall be
ex officio a member of all the standing committees, including the executive
committee, if any, and shall have the general powers and duties of management
usually vested in the office of president of a corporation, and shall have such
other powers and duties as may be prescribed by the Board of Directors or by
these bylaws.
SECTION 6.9 THE VICE PRESIDENTS. In the absence or disability of the
Chief Executive Officer and the President, the Vice Presidents in order of their
rank as fixed by the Board of Directors, or, if not ranked, the Vice Presidents
in order of their seniority of employment with the corporation, shall perform
the duties of the President, and when so acting shall have all the powers of,
and be subject to all the restrictions upon the President. The Vice Presidents
shall have such other powers and perform such other duties as from time to time
may be prescribed for them respectively by the Chief Executive Officer and the
President. The Board of Directors may appoint one or more Executive Vice
Presidents.
SECTION 6.10 THE SECRETARY. The Secretary shall keep, or cause to be
kept, a book of minutes in written form of the proceedings of the Board of
Directors, committees of the board, and stockholders. Such minutes shall include
all waivers of notice, consents to the holding of meetings, or approvals of the
minutes of meetings executed pursuant to these bylaws or statute. The Secretary
shall keep, or cause to be kept at the principal executive office or at the
office of the corporation's transfer agent or registrar, a record of its
stockholders, giving the names and addresses of all stockholders and the number
and class of shares held by each.
The Secretary shall give or cause to be given notice of all meetings of
the stockholders and of the Board of Directors required by these bylaws or by
law to be given, and shall keep the seal of the corporation in safe custody, and
shall have such other powers and perform such other duties as may be prescribed
by the Board of Directors or these bylaws.
SECTION 6.11 THE ASSISTANT SECRETARY. The Assistant Secretary shall
have all the powers and perform all the duties of the Secretary in the absence
or inability of the Secretary to act and shall perform such other duties as the
Board of Directors, the Chairman of the Board, the Chief Executive Officer or
the President shall designate.
SECTION 6.12 THE TREASURER. The Treasurer shall be the Chief Financial
Officer of the corporation. He shall deposit all monies and other valuables in
the name and to the credit of the corporation with such depositaries as may be
designated by the Board of Directors. He shall disburse all funds of the
corporation as may be ordered by the Board of Directors, shall render to the
Chief Executive Officer, the President and directors, whenever they request it,
an account of all of his transactions as treasurer and of the financial
condition of the corporation, and shall have such other powers and perform such
other duties as may be prescribed by the Board of Directors or by these bylaws.
SECTION 6.13 THE ASSISTANT TREASURER. The Assistant Treasurer, or if
there shall be more than one, the Assistant Treasurers in the order determined
by the Board of Directors (or if there is no such determination, then in the
order of their election), shall, in the absence of the treasurer or in the event
of his 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 the Board of Directors may from time to time prescribe.
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ARTICLE VII
INDEMNIFICATION OF DIRECTORS, OFFICERS,
EMPLOYEES AND AGENTS
SECTION 7.1 INDEMNIFICATION.
(a) ACTIONS, SUITS OR PROCEEDINGS OTHER THAN BY OR IN THE RIGHT OF
THE CORPORATION. The corporation shall to the fullest extent permitted by
applicable law 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 or has agreed to become a director or officer of the corporation, or is
or was serving or has agreed to serve at the request of the corporation as a
director or officer of another corporation, partnership, joint venture, trust or
other enterprise (including, without limitation, service with respect to
employee benefit plans) against all costs, charges, expenses (including
attorneys' fees), liabilities and losses, judgments, fines, amounts paid in
settlement and excise taxes or penalties assessed with respect to any employee
benefit or welfare plan reasonably incurred or suffered by him or her or on his
or her behalf in connection with such action, suit or proceeding and any appeal
therefrom, 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 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 which 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) ACTIONS OR SUITS BY OR IN THE RIGHT OF THE CORPORATION. The
corporation shall indemnify to the fullest extent permitted by applicable law
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 or has agreed to become a director or officer of the corporation,
or is or was serving or has agreed to serve at the request of the corporation as
a director or officer of another corporation, partnership, joint venture, trust
or other enterprise (including, without limitation, service with respect to
employee benefit plans), against all costs, charges, expenses (including
attorneys' fees), judgments, amounts paid in settlement and excise taxes or
penalties assessed with respect to any employee benefit or welfare plan
reasonably incurred or suffered by him or her or on his or her behalf in
connection with such action or suit and any appeal therefrom, 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, except that no indemnification
shall be made under this Section 7.1(b) in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery of Delaware or the
court in which such action or suit was brought shall determine upon application
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that, despite the adjudication of such liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such costs, charges and expenses which the Court of Chancery or
such other court shall deem proper.
(c) INDEMNIFICATION FOR COSTS, CHARGES AND EXPENSES OF SUCCESSFUL
PARTY. Notwithstanding any other provision of this Article VII, to the extent
that a director, officer, employee or agent of the corporation has been
successful on the merits or otherwise, including, without limitation, the
dismissal of an action without prejudice, in defense of any action, suit or
proceeding referred to in Sections 7.1(a) or 7.1(b) of this Article VII or in
defense of any claim, issue or matter therein, he or she shall be indemnified
against all costs, charges and expenses (including attorneys' fees) actually and
reasonably incurred by him or her or on his or her behalf in connection
therewith.
(d) DETERMINATION OF RIGHT TO INDEMNIFICATION. Any indemnification
under Sections 7.1(a) or 7.1(b) of this Article VII (unless ordered by a court)
shall be paid by the corporation only as authorized in the specific case upon a
determination that indemnification is proper in the circumstances because the
indemnified person has met the applicable standard of conduct set forth in
Sections 7.1(a) and 7.1(b) of this Article VII. 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 (who may be the
regular counsel of the corporation) in a written opinion, or (3) by the
stockholders.
(e) ADVANCEMENT OF COSTS, CHARGES AND EXPENSES. Expenses
(including attorneys' fees) incurred by a director or officer referred to in
Sections 7.1(a) or 7.1(b) of this Article VII in defending a civil or criminal
action, administrative or investigative action, suit or proceeding shall be paid
by the corporation, in advance of a determination of right to indemnification
pursuant to Section 7.1(d) of this Article VII or the final disposition of such
action, suit or proceeding, upon the written request of such director or
officer; provided, however, that the payment of such expenses in advance of the
determination of right to indemnification or the final disposition of such
action, suit or proceeding shall be made only upon receipt of an undertaking by
or on behalf of such director or officer to repay such amount if it shall
ultimately be determined that such director or officer is not entitled to be
indemnified by the corporation as authorized in this Section 7.1. The Board of
Directors may, in such case, and upon approval of such director or officer of
the corporation, authorize the corporation's counsel to represent such person,
in any action, suit or proceeding, whether or not the corporation is a party to
such action, suit or proceeding. Such costs, charges and 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) PROCEDURE FOR INDEMNIFICATION. Any indemnification under
Sections 7.1(a), 7.1(b) or 7.1(c) of this Article VII or advance of expenses
under Section 7.1(e) of this Article VII shall be made promptly, and in any
event within 60 days, upon the written request of the indemnified person. The
right to indemnification or advances as granted by this Section 7.1 shall be
enforceable by the indemnified person in any court of competent jurisdiction, if
the corporation denies such request, in whole or in part, or if no disposition
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thereof is made within 60 days. Such person's costs and expenses actually and
reasonably 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 costs, charges and
expenses under Section 7.1 of this Article VII where the required undertaking,
if any, has been received by the corporation) that the claimant has not met the
standard of conduct set forth in Section 7.1(a) or 7.1(b) of this Article VII
but the burden of proving such defense shall be on the corporation. Neither the
failure of the corporation (including its Board of Directors, its independent
legal counsel, and 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 Sections 7.1(a) or 7.1(b) of this Article VII nor the fact that
there has been an actual determination by the corporation (including its Board
of Directors, its independent legal counsel, and 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.
(g) OTHER RIGHTS; CONTINUATION OF RIGHT TO INDEMNIFICATION. The
indemnification and advancement of costs, charges and expenses provided by, or
granted pursuant to, this Section 7.1 shall not be deemed exclusive of any other
rights to which a person seeking indemnification or advancement of costs,
charges and expenses may be entitled under any law (common or statutory),
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 as set forth in Sections 7.1(a) and 7.1(b) of this
Article VII or otherwise, and, unless otherwise provided when authorized or
ratified, shall continue as to a person who has ceased to hold such office and
shall inure to the benefit of the estate, heirs, executors and administrators of
such person. All rights to indemnification under this Section 7.1 shall be
deemed to be a contract between the corporation and each director and officer of
the corporation who serves or served in such capacity at any time while this
Section 7.1 is in effect. Any repeal or modification of this Section 7.1 or any
repeal or modification of relevant provision of the Delaware General Corporation
Law or any other applicable laws shall not in any way diminish any rights to
indemnification of such director or officer or the obligations of the
Corporation arising hereunder.
(h) INDEMNIFICATION OF EMPLOYEES AND OTHER AGENTS. The Board of
Directors in its discretion shall have power on behalf of the corporation,
subject to applicable law, to indemnify any person made a party to any action,
suit or proceeding by reason of the fact that such person, or his or her
testator or intestate, is or was an employee or other agent of the corporation
and to advance costs, charges and expenses (including attorneys' fees) incurred
by such person in defending any such action, suit or proceeding.
SECTION 7.2 INSURANCE. The corporation may purchase and maintain
insurance on behalf of any person who is or was or has agreed to become 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 or
on his or her behalf 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 the provisions of this Article VII.
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SECTION 7.3 SAVINGS CLAUSE. If this Article VII or any portion hereof
shall be invalidated on any ground by any court of competent jurisdiction, then
the corporation shall nevertheless indemnify each director and officer of the
corporation as to costs, charges and expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement with respect to any action, suit
or proceeding, whether civil, criminal, administrative or investigative,
including an action by or in the right of the corporation, to the full extent
permitted by any applicable portion of this Article VII that shall not have been
invalidated and to the full extent permitted by applicable law.
ARTICLE VIII
STOCKHOLDERS
SECTION 8.1 CERTIFICATES OF STOCK. 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 or vice chairman of the Board of Directors
or the president or a vice president, and by the treasurer or an assistant
treasurer, or the secretary or an assistant secretary of the corporation,
representing the number of shares registered in certificate form. Any or all 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 were such officer, transfer agent or registrar at
the date of issue.
SECTION 8.2 LOST CERTIFICATES. The Board of Directors may direct a new
certificate or certificates of stock 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 legal representative, to advertise the same in such manner
as it shall require and/or to give the corporation a bond (or other adequate
security) in such sum 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 8.3 TRANSFER OF STOCK. Upon surrender to the corporation or the
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 to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its books.
SECTION 8.4 STOCKHOLDERS OF RECORD; NO RECORD DATE. 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
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the resolution fixing the record date is adopted by the Board of Directors, and
which record date shall not be more than sixty nor less than ten calendar days
before the date of such meeting. 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, provided, however, that the Board of Directors may
fix a new record date for the adjourned meeting.
In order that the corporation may determine the stockholders entitled
to consent to corporate action in writing without a meeting, the Board of
Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors, and which date shall not be more than ten calendar days after the
date upon which the resolution fixing the record date is adopted by the Board of
Directors. If no record date has been fixed by the Board of Directors, the
record date for determining stockholders entitled to consent to corporate action
in writing without a meeting, when no prior action by the Board of Directors is
required by statute, 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 or stockholders are
recorded. Delivery made to the corporation's registered office 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 statute, the record date for determining stockholders
entitled to consent to corporate action in writing without a meeting shall be at
the close of business on the day on which the Board of Directors adopts the
resolution taking such prior action.
In order that the corporation may determine the stockholders entitled
to receive payment of any dividend or other distribution or allotment of any
rights or the stockholders entitled to exercise any rights in respect of any
change, conversion or exchange of stock, or for the purpose of any other lawful
action, the Board of Directors may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date is
adopted, and which record date shall be not more than sixty days prior to such
action. If no record date is fixed, the record date for determining stockholders
for any such purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating thereto.
If no record date is fixed, the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders shall
be the close of business on the day next preceding the day on which notice is
given, or, if notice is waived, the close of business of the day next preceding
the day on which the meeting is held.
SECTION 8.5 REGISTERED STOCKHOLDERS. The corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of shares to receive dividends, and to vote as such owner, and to hold
liable for calls and assessments a person registered on its books as the owner
of shares, and shall not be bound to recognize any equitable or other claim to
or interest in such share or shares on the part of any other person, whether or
not it shall have express or other notice thereof, except as otherwise provided
by the laws of Delaware.
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ARTICLE IX
GENERAL PROVISIONS
SECTION 9.1 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 of the corporation, subject to the provisions of the
certificate of incorporation. If a dividend is to be paid in shares of the
corporation's theretofore unissued stock, the Board of Directors shall, by
resolution, direct that there be designated as capital in respect of such shares
an amount which is not less than the aggregate par value of par value shares
being declared as a dividend and, in the case of shares without par value being
declared as a dividend, such amount as shall be determined by the Board of
Directors. No such designation as capital shall be necessary if shares are
distributed pursuant to a split-up or division of the corporation's stock rather
than as payment of a dividend declared payable in stock of the corporation.
Before payment of any dividend, there may be set aside out of any funds of the
corporation legally available for dividends such sum or sums as the directors
may from time to time, in their absolute discretion, think proper as a reserve
or reserves to meet contingencies, or for equalizing dividends, or for repairing
or maintaining any property of the corporation, or for such other purposes as
the directors shall think conducive to the interest of the corporation, and the
directors may modify or abolish any such reserve in the manner in which it was
created. This section is subject to the provisions of the Stockholders
Agreement.
SECTION 9.2 CHECKS. All checks or demands for money and notes of the
corporation shall be signed by such officer or officers or such other person or
persons as the Board of Directors may from time to time designate.
SECTION 9.3 EXECUTION OF DOCUMENTS. Deeds, leases, contracts,
mortgages, bonds, debentures, drafts and other documents for and in the name of
the corporation shall be signed by such officer or officers or such other person
or persons as the Board of Directors may from time to time designate.
ARTICLE X
AMENDMENTS
SECTION 10.1 AMENDMENTS. Subject to the provisions of the Stockholders
Agreement, these bylaws may be altered, amended, or repealed or new bylaws may
be adopted, by the Board of Directors at any regular or special meeting thereof,
subject to the powers of the holders of a majority of the outstanding stock of
the corporation entitled to vote in respect thereof, by their vote given at an
annual meeting or at any special meeting, to amend or repeal any bylaw.
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